Reco Terrell v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Sep 10 2013, 5:33 am
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:
MATTHEW K. HAGENBUSH GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RECO TERRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1302-CR-78
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 15C01-0504-FA-4
September 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Reco Terrell (“Terrell”) appeals an order revoking his probation and reinstating ten of
thirteen previously-suspended years of his sentence for Dealing in Cocaine, as a Class A
felony.1 We affirm.
Issue
Terrell presents the sole issue of whether the trial court abused its discretion by
ordering reinstatement despite the fact that his current offenses were misdemeanors.
Facts and Procedural History
On March 23, 2006, Terrell received a thirty-year sentence of imprisonment following
his plea of guilty to Dealing in Cocaine. Thirteen years were suspended to probation. Terrell
was released and placed on probation on August 8, 2011. His probation was transferred to
the supervision of Ohio authorities.
On August 2, November 19, and November 28, 2012, the State of Ohio filed notices
of probation violations. The State alleged that Terrell had possessed drugs, tested positive
for marijuana, twice kept a place where beer or liquor was supplied in violation of law, and
twice committed permit violations. All alleged acts were misdemeanors under Ohio law.
On January 3, 2013, the trial court conducted a hearing on the probation violation
allegations. After finding that Terrell had violated the terms of his probation, the trial court
ordered Terrell’s probation revoked and that he be incarcerated for ten years of the
previously-suspended portion of his sentence. Terrell appeals.
1
Ind. Code § 35-48-4-1.
2
Discussion and Decision
Placement on probation is a conditional liberty and not a right. Cox v. State, 706
N.E.2d 547, 549 (Ind. 1999). A probation revocation hearing is in the nature of a civil
proceeding and, therefore, the violation need only be proven by a preponderance of the
evidence. Smith v. State, 727 N.E.2d 763, 765 (Ind. Ct. App. 2000). Proof of a single
violation of the conditions of probation is sufficient to support a decision to revoke
probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.
Indiana Code Section 35-38-2-3(h) provides as follows:
If the court finds that the person has violated a condition at any time before
termination of the period, and the petition to revoke is filed within the
probationary period, the 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; or
(3) Order execution of all or part of the sentence that was suspended at
the time of initial sentencing.
We review the trial court’s revocation of probation and sentencing decision for an
abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts and
circumstances before the court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Generally
speaking, as long as the trial court follows the procedures outlined in Indiana Code Section
35-38-2-3, the trial court may properly order execution of a suspended sentence. Abernathy
3
v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006).
Terrell was released to probation in August of 2011. On June 12, 2012, he pled no
contest to a charge of possession of drugs. His attempt to withdraw that plea was
unsuccessful. He also failed a drug screen administered by probation officers in Ohio.
Cincinnati, Ohio Police Officer Amber Bolte (“Officer Bolte”) testified that she investigated
the operation of an “after hours club” which sold alcohol without a legal permit and after the
2:30 a.m. statutory cut-off time. (Tr. 18.) Her investigation and the execution of a search
warrant at the club led to charges against the owner, who is Terrell’s wife, and also against
Terrell. Terrell admitted to Officer Bolte that he had provided security services at the club.
Her investigation indicated that Terrell had actually been managing the club.
Terrell does not contest the sufficiency of this evidence to establish one or more
probation violations on his part. Rather, he claims that he was deserving of leniency because
his recent offenses were misdemeanors and he was trying to earn a living and pay child
support by working in the club.
The trial court had an ample basis for the probation revocation decision and sentence
reinstatement. It is noteworthy that, despite Terrell’s desire for leniency, he has a lengthy
history of failing to benefit from rehabilitative efforts. He was adjudicated delinquent on
numerous occasions and has thirty-two criminal convictions, including six felonies. Terrell
has not demonstrated an abuse of the trial court’s discretion in the probation revocation
proceedings.
Affirmed.
4
MAY, J., and BRADFORD, J., concur.
5