Dominique Quinn Brisker v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 13 2018, 10:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominique Quinn Brisker, December 13, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1397
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1302-FB-353
Pyle, Judge.
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Statement of the Case
[1] Dominique Brisker (“Brisker”) appeals the trial court’s order revoking his
probation and ordering him to serve his previously suspended four-year
sentence. Finding no abuse of the trial court’s discretion, we affirm the trial
court’s judgment.
[2] We affirm.
Issues
1. Whether there is sufficient evidence to support the
revocation of Brisker’s probation.
2. Whether the trial court abused its discretion by ordering
Brisker to serve his previously suspended sentence.
Facts
[3] In November 2013, Brisker pled guilty to Class B felony unlawful possession of
a firearm by a serious violent felon. The trial court sentenced him to ten (10)
years with four (4) years to be served in the Department of Correction
(“DOC”), two (2) years at the Madison County Work Release Center, and four
(4) years suspended to probation. Pursuant to the terms and conditions of his
probation, Brisker was ordered, among other things, to “not knowingly
associate with any person who has been convicted of a felony, except for just
cause[.]” (App. 74). He was also ordered to comply with certain additional
special terms, including the following:
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(A) Successful completion of work release.
(B) Within 60 days, defendant ordered to obtain a substance
abuse evaluation at an accredited facility approved by the
Probation Department with full compliance with
recommendations including inpatient treatment, if suggested, and
submit written proof of compliance to Probation Department;
(C) Defendant ordered to totally abstain from the use of alcoholic
beverages and/or illicit drugs. On three (3) hours notice from the
Probation Department, defendant ordered to submit to random
urine and/or chemical screens, and be financially responsible for
said tests;
(D) Defendant ordered to find and maintain employment of
twenty-five (25) hours per week. Defendant shall provide written
verification of compliance to the Probation Department.
Defendant shall not change employment without prior written
approval of the Probation Department. In the event the
defendant becomes unemployed during period of probation,
defendant to successfully participate in a job seeking skills
program approved by the Court and/or Probation Department.
(App. 71-72).
[4] In October 2016, the State filed a notice of violation of suspended sentence.
After a hearing, the trial court found that Brisker had violated his work release
when his whereabouts were unknown on two occasions; he had failed to meet
his financial obligations; and he had failed to successfully complete work
release. The trial court ordered Brisker to serve two months in the Madison
County Detention Center and to return to work release thereafter.
[5] In November 2017, the State filed a second notice of violation of suspended
sentence. This notice read as follows:
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(a) Not to violate the laws of Indiana or the U.S. and failure to
behave well in society: On/about 11/01/17, you are alleged to
have committed the following new criminal offense(s): Ct. 1:
Unlawful Possession of a Firearm by a Serious Violent Felon,
Level 4 Felony; and Ct II: Pointing a Firearm, Level 6 Felony, as
filed in Madison County Circuit Court VI under Cause Number
48C06-1711-F4-002743;
(b) Failed to obtain a substance abuse evaluation at a treatment
facility approved by probation within 30 days of
sentencing/release, comply with treatment recommendations,
and provide written verification of successful completion of said
program to the probation department;
(c) Failed to maintain employment and/or verify employment to
probation department; and
(d) On or about 11/01/17, the defendant failed to not knowingly
associate with any person who has been convicted of a felony, to
wit: Deonta Anderson and Malachi Carter.
(App. 129). A bench warrant was issued, and Brisker was arrested in
Minnesota in December 2017.
[6] The trial court held an evidentiary hearing over three days. It found that
Brisker had violated the terms of his probation when he failed to obtain a
substance abuse evaluation and successfully complete the recommendations;
failed to maintain employment or verify employment; and avoid associating
with known felons.1 The trial court then revoked Brisker’s probation and
1
The trial court determined that the State had not proven the allegation that Brisker engaged in new criminal
activity by possessing a firearm and pointing a firearm at another person.
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ordered him to serve his previously suspended four-year sentence. Brisker now
appeals.
Decision
[7] Brisker argues that: (1) there is insufficient evidence to support the revocation of
his probation; and (2) the trial court abused its discretion when it ordered him
to serve his previously suspended four-year sentence. We address each of his
contentions in turn.
1. Probation Revocation
[8] Brisker’s first contention is that there is insufficient evidence to support the trial
court’s finding that he violated a condition of probation by associating with
known felons. “Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007). A probation revocation hearing is civil in nature, and the
alleged violation need be proven only by a preponderance of the evidence.
Pittman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. It is
within the trial court’s discretion to determine the conditions of probation and
to revoke probation if those conditions are violated. Heaton v. State, 984 N.E.2d
614, 616 (Ind. 2013). We review a trial court’s probation violation
determination for an abuse of discretion. Id. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law. Id. Further, the
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violation of a single condition of probation is sufficient to revoke probation.
Pittman, 749 N.E.2d at 559.
[9] Here, Brisker challenges only one of his three probation violations. Specifically,
he argues that the trial court abused its discretion by finding that he associated
with felons. We need not review Brisker’s challenge to one of his probation
violations because the trial court found two other probation violations. As
noted above, evidence of a single probation violation is sufficient to sustain a
revocation of probation. See Pittman, 749 N.E.2d at 559 (noting that probation
can be revoked based on a single violation); I.C. § 35-38-2-3(h) (authorizing the
trial court to revoke a defendant’s probation if it finds that the person has
violated a condition of probation at any time before termination of the period).
Because the trial court found that Brisker had violated three conditions of his
probation, two of which are unchallenged by Brisker, we affirm the trial court’s
ultimate decision to revoke his probation.
2. Order to Serve Suspended Sentence
[10] Brisker also argues that the trial court abused its discretion when it ordered him
to serve his previously suspended four-year sentence. Once a trial court has
exercised its grace by ordering probation rather than incarceration, it should
have considerable leeway in deciding how to proceed when the conditions of
probation are violated. Prewitt, 878 N.E.2d at 188. If this discretion were not
afforded to trial courts and sentences were scrutinized too severely on appeal,
trial courts might be less inclined to order probation. Id. Accordingly, a trial
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court’s sentencing decision for a probation violation is reviewable for an abuse
of discretion. Id. An abuse of discretion occurs when the trial court’s decision
is clearly against the logic and effect of the facts and circumstances. Id. After
the trial court has determined that a probationer has violated probation, the trial
court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without
modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more
than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
IND. CODE § 35-38-2-3(h).
[11] The record reveals that the trial court had ample basis for its decision to revoke
all four years of Brisker’s previously suspended sentence. Significantly, Brisker
violated multiple conditions of his probation. Additionally, as the trial court
noted, this was Brisker’s second violation under this cause number. The trial
court’s decision is supported by the record and not clearly against the logic and
effect of the facts and circumstances before it. Accordingly, the trial court was
well within its discretion to order Brisker to serve the entirety of his previously
suspended sentence upon finding that he had violated the terms of his
probation.
[12] Affirmed.
Najam, J., and Altice, J., concur.
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