Angela Hokey v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 24 2020, 10:17 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Hokey, July 24, 2020
Appellant/Respondent, Court of Appeals Case No.
20A-CR-262
v. Appeal from the Decatur Superior
Court
State of Indiana, The Hon. Matthew D. Bailey,
Appellee/Petitioner. Judge
Trial Court Cause Nos.
16D01-1810-F6-1309
16D01-1902-CM-203
16D01-1902-F6-173
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 1 of 5
Case Summary
[1] Following Angela Hokey’s April of 2019 guilty pleas to several crimes in three
cause numbers, the trial court imposed 1170 days of probation. In October of
2019, the State filed a petition to revoke Hokey’s probation for, inter alia, failing
to report to the probation office for three months or notify it of an address
change, the loss of her telephone, and transportation issues. In January of
2020, Hokey admitted to violating the terms of her probation, and the trial
court ordered that she serve 600 days of her previously-suspended sentences.
Hokey contends that the trial court abused its discretion in ordering her to serve
portions of her previously-suspended sentences. Because we disagree, we
affirm.
Facts and Procedural History
[2] On April 2, 2019, Hokey pled guilty to Level 6 felony methamphetamine
possession in cause number 16D01-1810-F6-1309 (“Cause No. 1309”), Class B
misdemeanor marijuana possession and Class C misdemeanor illegal
possession of paraphernalia in cause number 16D01-1902-CM-203 (“Cause No.
203”), and two counts of Level 6 felony unlawful possession of a legend drug in
cause number 16D01-1902-F6-173 (“Cause No. 173”). The trial court
sentenced Hokey to 360 days of probation in Cause No. 1309, 180 days of
probation in Cause No. 203, and 720 days of incarceration with 630 suspended
to probation in Cause No. 173 and ordered that all sentences were to be served
consecutively. Hokey began serving her probation in April of 2019.
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[3] On October 7, 2019, the State petitioned to revoke Hokey’s probation on the
bases that she had not reported to the probation office during the months of
July through September, the probation office had not been able to reach her by
telephone, she had not started her substance-abuse treatment, and she had not
performed her community service. On January 2, 2020, Hokey admitted that
she had violated the terms of her probation by failing to contact the probation
office or to notify it of an address change, change of telephone, or
transportation issues. The trial court ordered 180 days of probation revoked in
Cause No. 1309, sixty days revoked in Cause No. 203, and 360 days revoked in
Cause No. 173.
Discussion and Decision
[4] Hokey argues that the trial court abused its discretion in ordering her to serve
portions of her previously-suspended sentences. “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) (citing Sanders v.
State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005)). The Indiana Supreme Court
has held that “a trial court’s sentencing decisions for probation violations are
reviewable using the abuse of discretion standard[,]” explaining that
[o]nce a trial court has exercised its grace by ordering probation
rather than incarceration, the judge should have considerable
leeway in deciding how to proceed. If this discretion were not
afforded to trial courts and sentences were scrutinized too
severely on appeal, trial judges might be less inclined to order
probation to future defendants.
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Prewitt, 878 N.E.2d at 187. An abuse of discretion occurs when a decision is
clearly against the logic and effect of the facts and circumstances. Id.
[5] Violation of a single condition of probation is sufficient to revoke probation.
Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Where a violation of
the terms of probation has been established, Indiana Code subsection 35-38-2-
3(h)(3) allows the trial court to “[o]rder execution of all or part of the sentence
that was suspended at the time of initial sentencing” and the “[c]onsideration
and imposition of any alternatives to incarceration is a ‘matter of grace’ left to
the discretion of the trial court.” Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct.
App. 1996). “When reviewing an appeal from the revocation of probation, we
consider only the evidence most favorable to the judgment, and we will not
reweigh the evidence or judge the credibility of the witnesses.” Vernon v. State,
903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans denied.
[6] We conclude that the trial court did not abuse its discretion in ordering Hokey
to serve portions of her previously-suspended sentences. Hokey began serving
her probation in April of 2019 but by July had stopped contacting the probation
office and failed to do so again until September. Hokey admitted that during
the time period in question she had not informed the probation office of her
whereabouts and that the office was unable to contact her or leave a voicemail.
Hokey also acknowledged that she fully understood the terms of her probation
but “blew them off[.]” Tr. Vol. II p. 11. Hokey’s admitted violation of the
terms of her probation is sufficient to support the trial court’s revocation and
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order that she serve portions of her previously-suspended sentences. See Gosha,
873 N.E.2d at 663.
[7] Hokey contends that the trial court should have accepted her testimony that she
stopped reporting to the probation officer because her van broke down, she lost
her job, she moved, and her telephone ran out of minutes. Hokey also testified
that she could not contact her probation officer because nobody would let her
use a telephone. Even if we accept that any of this would excuse Hokey’s
violations, the trial court was under no obligation to credit her testimony and
apparently did not. Hokey’s argument is nothing more than an invitation to
reweigh the evidence, which we will not do. See Vernon, 903 N.E.2d at 536.
[8] Hokey also contends that her violations were technical in nature and therefore
should not support partial revocations. Hokey cites to no authority for the
proposition that “technical” violations of the terms of probation should not be
able to support revocation, and we are aware of none. Moreover, we take issue
with Hokey’s claim that her violations were merely “technical” in nature. The
violation of terms of probation such as reporting requirements and the
requirement to update the probation office of one’s whereabouts make it much
easier for a probationer to conceal other violations, such as illegal activity.
Even if we assume that nothing like that occurred in this case, we do not think
it is accurate to characterize Hokey’s violations as merely “technical.”
[9] We affirm the judgment of the trial court.
Baker, J., and Pyle, J., concur.
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