Joshua D. Darner v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 26 2016, 9:58 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Jonathan R. Sichtermann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua D. Darner, February 26, 2016
Appellant-Defendant, Court of Appeals Cause No.
32A01-1507-CR-887
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Mark A. Smith,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D04-1303-FC-34
Barnes, Judge.
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Case Summary
[1] Joshua Darner appeals the revocation of his probation. We affirm.
Issue
[2] The sole restated issue is whether there is sufficient evidence to support the
revocation of Darner’s probation.
Facts
[3] On November 12, 2013, Darner pled guilty to obtaining a controlled substance
by fraud or deceit, a Class D felony. The trial court sentenced him to 1095 days
in the Department of Correction, suspended the entirety of the sentence to
probation, and ordered him to pay fifty-five dollars per month in fees and court
costs.
[4] On March 5, 2014, the probation department filed a petition alleging Darner
violated the conditions of his probation by possessing and consuming
marijuana and “a controlled substance without a prescription from a licensed
physician, to wit: Hydrocodone.” App. p. 41. It further alleged he failed “to be
evaluated by a DMHA certified substance abuse program within forty-five days
of sentencing” and “to pay $55.00 per month toward [his] fines, costs, and
fees.” Id. On May 27, 2014, the probation department filed a supplemental
petition alleging Darner violated the conditions of his probation by possessing
and consuming marijuana and “a controlled substance without a prescription
from a licensed physician, to wit: Morphine.” Id. at 50.
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[5] On June 16, 2015, the trial court held an evidentiary hearing on both petitions.
On cross-examination, Darner admitted he tested positive in two separate drug
screens. He also admitted he did not make any payments toward his fees.
Andrew Lilpop, Darner’s supervising probation officer, testified that although
Darner had scheduled evaluations at Life Recovery Center on more than one
occasion, he did not attend them and did not complete a substance abuse
program.
[6] The trial court found Darner violated his probation by “possessing or
consuming an illegal drug without prescription on two (2) different occasions
and he failed to pay fees that he was ordered to pay and he failed to complete a
certified substance abuse program with[in] forty five (45) days of his sentencing
date.” Tr. pp. 98-99; App. p. 60. It revoked his probation and sentenced him to
serve 730 days in the Department of Correction. Darner now appeals.
Analysis
[7] Darner contends the State failed to prove he recklessly, knowingly, or
intentionally failed to pay fines, court costs, and fees and that the evidence is,
therefore, insufficient to support the revocation of his probation.
[8] The State must prove a violation of probation by a preponderance of the
evidence. Dokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The
decision to revoke probation lies within the sound discretion of the trial court,
and it may revoke probation if the conditions thereof are violated. Lamply v.
State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015). We review challenges to the
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revocation of probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d
984, 987 (Ind. Ct. App. 2015). A trial court abuses its discretion when its
decision is clearly against the logic and effect of the facts and circumstances
before it. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is
substantial evidence of probative value to support the trial court’s conclusion
that a defendant has violated any term of probation, we will affirm its decision
to revoke probation. Id. at 272.
[9] Darner himself admitted he tested positive on two drug screens. See Tr. pp. 92-
93. That admission itself is sufficient to prove by a preponderance of the
evidence that Darner violated a term of his probation. The violation of a single
term of probation is sufficient to support the revocation of probation.
Consequently, we need not address Darner’s arguments regarding his failure to
make payments.
[10] Darner acknowledges he admitted he used illegal drugs and failed to complete a
drug treatment program. He contends that despite those admissions, the State’s
failure to meet its burden of proof with regard to his failure to pay is not
harmless error. He characterizes his failure to complete substance abuse
treatment as a technical violation and argues, “This Court cannot be sure that
the trial court would have imposed the same punishment of 730 days executed
at IDOC for the two remaining violations . . . .” Appellant’s. Br. p. 9. Darner
cites to Heaton v. State, 984 N.E.2d 614 (Ind. 2013), to support that request. In
Heaton, our supreme court vacated one of four findings that a probationer
committed a violation and remanded the matter to the trial court to reconsider
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the probationer’s sanction in light of the fact that the three remaining violations
were technical in nature. Id. at 618. Darner asks this Court to similarly remand
this matter. Darner tested positive for illegal substances in two separate drug
screens. Each screen revealed he had consumed marijuana and a prescription
medication for which he did not have a prescription. Such a violation is not, in
our view, insignificant or “technical,” especially given that Darner was on
probation for a drug offense. This matter is readily distinguishable from Heaton.
Conclusion
[11] The trial court did not abuse its discretion when it revoked Darner’s probation.
Affirmed.
Robb, J., and Altice, J., concur.
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