Christopher C. Anderson v. State of Indiana ( 2013 )

Aug 28 2013, 5:43 am
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:
PHILIP R. SKODINSKI GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER C. ANDERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 71A05-1302-CR-78
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R.W. Chamblee, Jr., Judge
The Honorable Elizabeth C. Hurley, Judge
Cause No. 71D08-0708-FB-101
August 28, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant–Defendant, Christopher C. Anderson (Anderson), appeals the trial
court’s revocation of probation.
We affirm.
ISSUE
Anderson raised one issue on appeal, which we restate follows: Whether the trial
court abused its discretion in revoking Anderson’s probation and ordering execution of
his sentence.
FACTS AND PROCEDURAL HISTORY
On August 1, 2007, the State filed an Information charging Anderson with Count
I, possession of marijuana, a Class A misdemeanor, Ind. Code Section 35-48-4-11, and
Count II, possession of cocaine within 1000 feet of a family housing complex, a Class B
felony, I. C.§ 35-48-4-6. Anderson entered into a plea agreement with the State, wherein
he agreed to plead guilty to Count I and II. On January 12, 2009, the trial court held a
sentencing hearing where it accepted Anderson’s plea agreement, and sentenced him to
twelve months for Count I. Anderson was also sentenced to serve ten years for Count II,
with 4 years of that sentence suspended and probation with community corrections for
the remaining six years. Both sentences were to run concurrently.
On January 19, 2011, the State filed a petition to revoke Anderson’s probation,
alleging that he had: (1) violated the conditions of his placement set forth by St. Joseph
County Community Corrections; (2) tested positive on three separate occasions for THC,
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once for opiates and once for alcohol; and (3) failed to make good-faith effort to pay his
home detention fees totaling to $ 7, 220.00. On May 12, 2011, Anderson’s case manager
conducted a home search where she found 10 marijuana joints. Specifically, on May 16,
2011, Anderson’s case manager wrote to the prosecutor to inform him of additional
misconduct committed by Anderson. On July 1, 2011, the trial court held a hearing on
the State’s petition to revoke Anderson’s probation. Anderson admitted that he violated
his probation, however on January 17, 2012, the trial court extended Anderson’s
probationary period and returned him to community corrections. .
On October 30, 2012, State filed a second petition to revoke Anderson’s probation
alleging Anderson had: (1) violated the conditions of his placement; (2) failed an alcohol
test and had tested positive for spice; and (3) failed to make good-faith effort to pay his
home detention fees which now had gone up to $ 7, 502.31. On January 4, 2013, the trial
court held an evidentiary hearing where Anderson’s case manager, Michael Wells
(Wells), testified that Anderson had violated his probation. Wells testified that on nine
separate dates, Anderson had indicated on the work schedule that he was at work when in
fact he was somewhere else. Wells further testified that the times when Anderson’s
whereabouts were unaccounted for varied between a couple hours to the entire length of
his work shift. Also, Wells stated that on October 3, 2012, Anderson tested positive for
alcohol. At the close of the hearing, the trial court found that Anderson had violated the
terms of his probation.
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On January 22, 2013, the trial court conducted Anderson’s sentencing hearing. At
the close of the hearing, the trial court held that Anderson had violated the terms of his
probation and ordered him to serve the remainder of his ten year sentence in the
Department of Correction (D.O.C.).
Anderson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Anderson challenges his revocation of probation and argues that the trial court
abused its discretion in sentencing him to serve the remainder of his ten year sentence at
the D.O.C. He argues that his sentence was not appropriate in accordance with Indiana
Appellate Rule 7 (B). However App. R 7(B) is not the appropriate standard here. See
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)
A reviewing court treats a petition to revoke a placement in a community
corrections program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d
547, 549 (Ind. 1999). Community corrections is “a program consisting of residential and
work release, electronic monitoring, day treatment, or day reporting [.].” I.C. § 35–38–
2.6–2. In this regard, we note that the decision to revoke probation is within the sole
discretion of the trial court. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). On review,
we consider only the evidence most favorable to the judgment without reweighing that
evidence or judging the credibility of the witnesses. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995). If there is substantial evidence of probative value to support the trial
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court’s decision that a defendant has violated any terms of probation, the reviewing court
will affirm its decision to revoke probation. Id.
We also note that Indiana Code section 35–38–2.6–5 provides that if a person
placed directly in community corrections violates the terms of the placement, the trial
court may, after a hearing, revoke the placement and commit the person to the D.O.C for
the remainder of the sentence. See Christie v. State, 939 N.E.2d 691, 694 (Ind. Ct. App.
2011).
In this instant case, the state filed its first petition alleging that Anderson had
violated his probation and he admitted to it. The record reveals that the trial court was
lenient with Anderson, since it ordered a continuance of his probation with community
corrections. This notwithstanding, the record shows that Anderson violated his
probation for the second time and this warranted the State to file a second revocation
petition. On January 4, 2013, the trial court held Anderson’s evidentiary hearing. In
support of the State’s petition, Wells gave evidence pertaining to Anderson’s violation
of probation. Wells stated that on nine separate dates, Anderson had indicated on the
work schedule that he was at work when in fact he was somewhere else. Also, Wells
testified that on October 3, 2012, when he ordered Anderson to take a breathalyzer test,
he tested positive for alcohol. Finally, the record shows that Anderson had failed to
make a good-faith effort to pay his home detention fees.
We note that proof of a single violation of the conditions of a defendant’s
probation is sufficient for the trial court to revoke probation. See Hubbard v. State, 683
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N.E.2d 618, 620 (Ind. Ct. App. 1997). Here, the trial court seems to have been very
lenient with Anderson, even after he violated his probation the first time. Anderson’s
repeated refusal to adhere to the terms of his placement in community corrections
demonstrates that revocation of his probation was proper under the circumstances. In
light of the forgoing, we find that there was substantial evidence of probative value that
supported the trial court’s finding. In this regard, we cannot say the trial court acted
outside the bounds of its discretion when it ordered Anderson to serve the entire ten
years at the D.O.C., for his previously suspended sentence.
CONCLUSION
For the foregoing reasons, we find that the trial court did not abuse its discretion in
revoking Anderson’s probation.
Affirmed.
KIRSCH, J. and C. J. ROBB concur
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