Abasifreke Ukpong 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 Mar 23 2020, 9:50 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Abasifreke Ukpong, March 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2347
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Mark A. Smith,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D04-1502-F5-8
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 1 of 7
Case Summary
[1] Abasifreke Ukpong appeals the trial court’s imposition of his previously
suspended sentence after his probation revocation. We affirm.
Issue
[2] The issue on appeal is whether the trial court abused its discretion when it
ordered Ukpong to serve his previously suspended sentence on work release
following his probation revocation.
Facts
[3] On February 5, 2015, Ukpong was charged in Hendricks County with corrupt
business influence, a Level 5 felony, and counterfeiting, a Level 6 felony.
Ukpong failed to appear for multiple hearings, including two failures to appear
due to detainment or incarceration for offenses separate from the present cause:
January 11, 2016, due to detainment in Blackford County, and May 16, 2016,
due to incarceration in Texas for credit card fraud for which he served nine
months in jail.
[4] Ukpong originally pleaded guilty on March 21, 2016, to corrupt business
influence, a Level 5 felony, but he failed to appear for the sentencing hearing on
May 16, 2016, due to his incarceration in Texas. On August 14, 2017, the trial
court accepted Ukpong’s plea and sentenced him to the Department of
Correction (“DOC”) for four years, with one year to be executed on work
release and three years to be served on probation. The trial court ordered his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 2 of 7
sentence to be served consecutively to a misdemeanor sentence in Marion
County in cause number 49G20-1509-CM-32704 (“CM-32704”). 1
[5] While on probation, Ukpong was charged with possession of marijuana, a
Class B misdemeanor. After his arrest, Ukpong contacted his Marion County
probation officer, but Ukpong failed to notify Hendricks County authorities of
his arrest. Ukpong claims he did not realize he was required to notify
Hendricks County authorities of his arrest because his probationary period in
Hendricks County had not begun.2 On November 26, 2018, the State
subsequently filed a petition alleging Ukpong violated his probation based on
his new criminal charge, possession of a controlled substance, and his failure to
timely notify his probation officer of contact with law enforcement.
[6] On July 29, 2019, the trial court held an evidentiary hearing wherein Ukpong
admitted to all three allegations. The trial court revoked his probation and
imposed Ukpong’s previously suspended sentence to be served on work release.
The trial court concluded that there was “no benefit in returning” Ukpong to
probation. Tr. Vol. II p. 12.
1
On September 13, 2015, in CM-32704 Ukpong was charged with resisting law enforcement, a Class A
misdemeanor; disorderly conduct, a Class B misdemeanor; and public intoxication, a Class B misdemeanor.
Ukpong was sentenced for these crimes on July 28, 2017, and ordered to serve his sentence consecutively to a
prior Marion County felony conviction for financial deceit in cause number 49G02-1503-F5-7205.
2
At the time, Ukpong was serving his probationary period in Marion County for his sentence in case CM-
32704. Ukpong’s Hendricks County sentence was ordered to be served consecutively with the Marion
County sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 3 of 7
[7] Ukpong filed a motion to correct error, which was subsequently denied. A
motion for relief from clerical error was filed on September 12, 2019, which the
trial court granted and issued an amended court order on violation dated
September 9, 2019. Ukpong now appeals.
Analysis
[8] Ukpong argues that the trial court abused its discretion when it ordered Ukpong
to serve his previously suspended sentence on work release following the
revocation of his probation. “[A] trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard.”
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances before the court. Id.
[9] Probation as an alternative to incarceration is a “matter of grace” and a
“conditional liberty that is a favor, not a right.” Cox v. State, 706 N.E.2d 547,
549 (Ind. 1999) (quoting Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)).
“Once a trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to
proceed.” Votra v. State, 121 N.E.3d 1108, 1112 (Ind. Ct. App. 2019) (quoting
Prewitt, 878 N.E.2d at 188). “[O]bstacles to revoking an alternative sentence
may diminish the likelihood of community corrections placements being made
in the first place.” Cox, 706 N.E.2d at 550.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 4 of 7
[10] Indiana Code § 35-38-2-3(h) governs the sanctions the trial court may impose
when probation is violated. Subsection (h) provides:
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.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h).
[11] Ukpong argues that the trial court abused its discretion because: (1) this was his
first probation violation; (2) all three allegations were connected with the single
act of possessing marijuana; (3) the violation did not cause physical harm or
pecuniary loss; (4) Ukpong admitted the violation; (5) the sentence imposed
was longer than recommended by his probation officer; and (6) Ukpong
reasonably believed that he met his reporting obligation by notifying the Marion
County probation officer.
[12] In support of his argument, Ukpong points to Ripps v. State, 968 N.E.2d 323
(Ind. Ct. App. 2012), in which this Court found an abuse of discretion in
revoking the defendant’s probation. The defendant in Ripps was convicted of
child molesting, a Class C felony, and violated his probation by committing the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 5 of 7
new offense of residing within 1,000 feet of a public park and youth program
center when he moved into an assisted living facility. The trial court revoked
the defendant’s probation and ordered him to serve the remainder of his
sentence in the DOC. This Court found an abuse of discretion because:
Ripps was sixty-nine years old and suffering from serious health
issues, including terminal cancer; he was attempting to adhere to
his probation conditions, as evidenced by his going to the
sheriff’s office to register his new address; although he was
initially in violation of the residency restriction, evidence reveals
he was taking steps to correct the violation by finding a new
residence; while he did live within 1,000 feet of the public library,
this was only so by about twenty feet and some ambiguity exists
in how this distance was measured; and, last, Ripps previously
served time in prison for a crime that was later vacated as
violative of our constitutional ex post facto provision.
Ripps, 968 N.E.2d at 328.
[13] Ukpong’s case is distinguishable from Ripps. Ukpong has not demonstrated the
same level of commitment to complying with the terms of his probation. “The
violation of a single condition of probation is sufficient to revoke probation.”
Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016) (citing Wilson v. State, 708
N.E.2d 32, 34 (Ind. Ct. App. 1999)), trans. denied. The conditions of Ukpong’s
probation required him to obey all laws and to report any contact with law
enforcement to his probation officer within forty-eight hours. Ukpong not only
violated his probation by failing to report; he also committed the new criminal
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 6 of 7
offense of possession of marijuana. Both violations are more than a technical
violation of probation.
[14] Ukpong demonstrated a lack of compliance when he committed the new
offense of possession of marijuana; and, although Ukpong notified his Marion
County probation officer of his arrest for possession of marijuana, he failed to
report the arrest to the probation authorities in Hendricks County. See Terpstra
v. State, 138 N.E.3d 278, 289-290 (Ind. Ct. App. 2019) (affirming the imposition
of defendant’s previously suspended sentence where defendant committed a
new criminal offense and failed to report the arrest). Under these
circumstances, the trial court did not abuse its discretion.
Conclusion
[15] Ukpong has not demonstrated that the trial court abused its discretion by
imposing his previously suspended sentence on work release. We affirm.
[16] Affirmed.
Najam, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020 Page 7 of 7