Anthony Tyrone White v. State of Indiana ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jun 12 2012, 9:10 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOSEPH P. HUNTER GREGORY F. ZOELLER
Public Defender Attorney General of Indiana
Muncie, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY TYRONE WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1109-CR-871
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Thomas A. Cannon, Jr., Judge
Cause No. 18C05-0903-FC-5
June 12, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Anthony Tyrone White appeals the revocation of his
placement in home detention, arguing that the evidence was insufficient. Finding the
evidence sufficient, we affirm.
FACTS
On March 17, 2009, White was charged with class C felony operating a motor
vehicle after forfeiture of license for life. On August 3, 2009, White pleaded guilty to the
charge. Pursuant to the terms of a plea agreement, White was sentenced to four years in
the Indiana Department of Correction (DOC) with two years executed on direct
commitment to the Delaware County Community Correction program and the remainder
on supervised probation. On October 21, 2009, White was placed on home detention.
On April 20, 2010, the State filed a petition to revoke White’s direct commitment.
Specifically, the State alleged that White had violated the rules of his direct commitment
by committing new crimes, namely, two counts of class A felony child molesting and
one count of class C felony child molesting under Cause No. 18C04-1001-FA-1 (FA-1).
Rule 20 specified that any new violation of law may result in the removal of his home
detention. On June 9, 2011, White pleaded guilty to one count of class B felony child
molesting as a lesser-included offense of class A felony child molesting under FA-1.1
The count of child molest to which White pleaded guilty was alleged to have occurred
between July 1, 2009, and December 23, 2009.
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The State agreed to dismiss the remaining counts under FA-1.
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A fact-finding hearing on the petition to revoke was held on August 9, 2011. On
September 12, 2011, the trial court concluded that White had violated the terms of his
direct commitment, revoked the remainder of his direct commitment
and ordered that it be served as executed time at the DOC. The suspended portion of
White’s sentence remained. White now appeals.
ARGUMENT
White argues that the State failed to prove that he violated the rules of home
detention while he was on direct commitment. More particularly, White points out that
the count of felony child molesting to which he pleaded guilty was charged as having
occurred between July 1, 2009, and December 23, 2009, but that he was not placed on
home detention until October 21, 2009. Therefore, according to White, the State failed to
prove the offense was committed after he was placed on home detention.
This court treats a review of a decision to revoke a placement in a community
corrections program the same as a hearing on a petition to revoke probation. Cox v.
State, 706 N.E.2d 547, 549 (Ind. 1999). At a probation hearing, the State needs only to
prove the alleged violations by a preponderance of the evidence. Id. at 551. We consider
only the evidence most favorable to the judgment of the trial court without reweighing
that evidence or judging the credibility of the witnesses. Id. We will affirm the trial
court’s decision to revoke probation if there is substantial evidence of probative value to
substantiate its conclusion that a violation of any terms of probation has occurred.
Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).
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Probationers are not entitled to the full array of constitutional rights afforded to
defendants at trial; however, “the Due Process Clause of the Fourteenth Amendment does
impose procedural and substantive limits on the revocation of the conditional liberty
created by probation.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
In this case, at the revocation hearing, the trial court took judicial notice of the
charging information which included the probable cause affidavit and the plea agreement
in which White admitted to committing child molesting. Tr. p. 14-16. The probable
cause affidavit noted that the last child molesting incident occurred in December 2009,
which was well after White had been placed on home detention. In any event, “[t]here is
no express language in the community corrections statute that limits the trial court’s
discretion to revoke placement only when a violation occurs during the period of
placement.” Million v State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995). Consequently,
this argument fails, and we affirm the decision of the trial court.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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