Lucas H. Jackson v. State of Indiana , 2014 Ind. App. LEXIS 158 ( 2014 )

Apr 15 2014, 9:52 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LUCAS H. JACKSON, )
)
Appellant-Defendant, )
)
vs. ) No. 62A04-1311-CR-563
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable Mary Lucille “Lucy” Goffinet, Judge
Cause No. 62C01-1109-FD-623
April 15, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Lucas H. Jackson (“Jackson”) appeals the trial court’s revocation of his probation.
We reverse.
ISSUE
Whether the trial court abused its discretion by revoking Jackson’s
probation based upon Jackson being charged with an additional offense.
FACTS
In September 2011, the State charged Jackson with Class D felony possession of a
controlled substance, Class B misdemeanor public intoxication, and Class C
misdemeanor illegal consumption of an alcoholic beverage. In February 2012, Jackson
entered into a written plea agreement in which he pled guilty to the Class D felony charge
in exchange for the State’s dismissal of the two misdemeanor charges. Thereafter, the
trial court accepted Jackson’s plea and imposed a 730 day sentence with 124 days
executed and 606 days suspended to probation. As a condition of Jackson’s probation,
the trial court ordered that Jackson “shall not commit any act(s) which would be a crime
during the period of probation.” (App. 39).
At some point, Jackson moved to Kentucky and had his probation transferred
there. On November 7, 2012, the State filed a notice of probation violation, alleging that
Jackson had “violated one or more of the terms and conditions of probation to-wit: On
October 27, 2012, [the] State of Kentucky, County of Hancock, file[d] charges of Sexual
Abuse, 1st Degree, Victim under 12 years of age, in cause 12-F-00074.” (App. 45).
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On September 26, 2013, the trial court held an evidentiary hearing. During this
hearing, the State argued that Jackson had violated the term of probation prohibiting him
from committing any acts which would be a crime during his period of probation.
Jackson’s probation officer testified that Jackson violated this probationary condition by
being charged with the offense of sexual abuse in Kentucky. The State introduced a copy
of the Kentucky indictment into evidence over Jackson’s objection. The indictment
provided:
The Grand Jury charges:
COUNT ONE: That on or about September 13, 2012 in Hancock County,
Kentucky, the above-named defendant, Lucas Jackson, committed the
offense of Sexual Abuse in the First Degree Victim Under 12 Years of Age,
when he subjected O.N., a minor under twelve (12) years of age, to sexual
contact.
COUNT TWO: That on or about September 13, 2012 in Hancock County,
Kentucky, the above-named defendant, Lucas Jackson, committed the
offense of Sexual Abuse in the First Degree Victim Under 12 Years of Age,
when he subjected O.N., a minor under twelve (12) years of age, to sexual
contact.
(State’s Ex. 1). The probation officer testified that the grand jury indictment constituted a
violation of Jackson’s probation. No other evidence was introduced, and Jackson did not
testify during the revocation hearing.
At the end of the hearing, the trial court concluded that “the State ha[d] met its
burden of proof” and determined that Jackson was “in violation of his probation as set
forth in the notice of violation filed November the 7th of 2012.” (Tr. 12). Specifically, as
provided in the trial court’s revocation order, the trial court concluded that Jackson was
“in violation of the terms and conditions of probation by being charged with a new
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offense on October 27, 2012, in the State of Kentucky, County of Hancock, of Sexual
Abuse, 1st Degree, Victim under 12 years of age, in Cause 12-F-00074.” (App. 67).
During the October 2013 disposition hearing, the State asserted that “the basis of
the [probation] violation is . . . that the defendant was charged with a new crime” and
asked the trial court to revoke Jackson’s probation and to impose his previously
suspended sentence. (Tr. 19). Jackson’s counsel stated that Jackson’s Kentucky case
was still pending and asked the trial court to continue Jackson on probation. The trial
court revoked Jackson’s probation and ordered Jackson to serve his previously suspended
606 day sentence.
DECISION
Jackson challenges the trial court’s determination that he violated his probation.
Specifically, he argues that the trial court abused its discretion by revoking his probation
based solely upon a charge being filed against him.
“Probation is a matter of grace left to trial court discretion, not a right to which a
criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The
trial court determines the conditions of probation and may revoke probation if the
conditions are violated. Id.; see also Ind. Code § 35–38–2–3(a). We review a trial
court’s probation violation determination for an abuse of discretion. Heaton v. State, 984
N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances or when the trial court
misinterprets the law. Id.
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“When a probationer is accused of committing a criminal offense, an arrest alone
does not warrant the revocation of probation.” Johnson v. State, 692 N.E.2d 485, 487
(Ind. Ct. App. 1998). Likewise, the mere filing of a criminal charge against a defendant
does not warrant the revocation of probation. Martin v. State, 813 N.E.2d 388, 391 (Ind.
Ct. App. 2004). Instead, when the State alleges that the defendant violated probation by
committing a new criminal offense, the State is required to prove—by a preponderance of
the evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at 617.
Jackson argues that the State failed to prove by a preponderance of the evidence
that he had committed a new offense while on probation.
The State contends that Jackson’s arrest warrant “established the basis for the
offenses” charged against Jackson, and the State asserts that “[t]his evidence” showed
that Jackson had violated his probation by committing a new offense and was “more than
sufficient to meet the preponderance of the evidence standard.” (State’s Br. 7).
However, as Jackson points out in his Reply Brief, the arrest warrant cannot support a
finding of a probation violation because it was not introduced as evidence at the
revocation hearing.1
Here, the only probation violation alleged by the State was that criminal charges
had been filed against Jackson in Kentucky. The only evidence submitted at the
evidentiary hearing was a copy of the indictment against Jackson and the probation
officer’s assertion that the indictment constituted a violation of Jackson’s probation that
he not commit another crime during probation. The trial court did not determine, by a
1
The arrest warrant is, however, contained in the Appendix.
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preponderance of the evidence, that Jackson had actually committed a new criminal
offense. Instead, the trial court determined that Jackson was in violation of probation by
merely “being charged with a new offense[.]” (App. 67).
Based on the record before us, we conclude that the trial court abused its
discretion by revoking Jackson’s probation and we reverse the trial court’s revocation of
Jackson’s probation. See, e.g., Martin, 813 N.E.2d at 391 (holding that the fact criminal
charges were filed against a probationer did not warrant revocation of probation);
Heaton, 984 N.E.2d at 617 (holding that to revoke a defendant’s probation based on the
allegation that he committed a new criminal offense, the trial court must find that the
evidence established by a preponderance of the evidence that the defendant committed a
new criminal offense).
Reversed.
FRIEDLANDER, J., and MATHIAS, J., concur.
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