Danny K. Peet v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Cohen Law Offices Attorney General of Indiana
Elkhart, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
FILED
Indianapolis, Indiana
Aug 15 2012, 9:28 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
DANNY K. PEET, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1203-CR-185
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Stephen R. Bowers, Judge
Cause Nos. 20D02-0808-FC-113 and 20D02-0809-FC-126
August 15, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
In this consolidated appeal, Danny K. Peet appeals the revocation of his probation
contending that there was insufficient evidence that he violated the conditions of his
probation in two underlying cases.
We affirm.
FACTS AND PROCEDURAL HISTORY
In January of 2009, Peet was convicted of burglary, a Class C felony, and
sentenced to six (6) years with four years suspended to probation. In October of that
year in a separate case, Peet pled guilty to burglary, a Class C felony, and was sentenced
to five (5) years suspended to probation, but consecutive to his sentence for his earlier
burglary. The terms of Peet’s probation in both cases provided as follows:
You will submit to drug and alcohol screening as your Probation Officer
directs. (Specimens may be collected at the Probation Department, your
home, laboratory or place of employment.)
Appellant’s App. at 43, 177.
On October 19, 2011, Peet was requested by his probation officer to submit to a
hair follicle test. Peet refused, contending that the probation officer had no authority to
direct him to submit to such a test without a court order. The probation department filed
a violation of probation in both cases alleging that Peet’s failure to submit to the hair
follicle test was a violation of the terms of his probation.1 Following the hearing, the
trial court revoked Peet’s probation in both cases and ordered him to serve the remainder
of his sentences. Peet now appeals.
1
The notice of probation violation also contended that Peet had failed to attend scheduled appointments
with his probation officer, a claim challenged by Peet in his appeal. Because we find the evidence that Peet’s
refusal to submit to drug testing was sufficient, and because proof of a single probation violation is sufficient to
support the decision to revoke probation, we do not reach such issue.
2
DISCUSSION AND DECISION
We review a trial court’s decision to revoke probation under an abuse of discretion
standard. Williams v. State, 883 N.E.2d 192, 195 (Ind. Ct. App. 2008). A probation
revocation hearing is civil in nature and the State need only prove the alleged violations
by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). Our
court considers only the evidence most favorable to the judgment and does not reweigh
the evidence presented or judge the credibility of the witnesses. Williams, 883 N.E.2d at
195. The violation of a single condition of probation is sufficient to revoke probation.
Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999). If there is substantial evidence
of probative value to support the trial court’s conclusion that a defendant has violated any
terms of probation, we will affirm its decision to revoke probation. Cox, 706 N.E.2d at
551.
The term of Peet’s probation requiring him to “submit to drug and alcohol
screening as your Probation Officer directs” was clear and unambiguous, as was the
evidence that Peet refused to submit to such a test without a court order to do so.
Appellant’s App. at 43, 177 (emphasis added). Peet makes no argument on appeal that
the hair follicle test was not scientifically valid or was unreasonably burdensome in any
way. The evidence was sufficient for the trial court to revoke Peet’s probation, and the
trial court was within its discretion in doing so.
Affirmed.
NAJAM, J., and MAY, J., concur.
3