Anthony K. McCullough v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
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before any court except for the Dec 21 2012, 9:09 am
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH ANN JOHNSON GREGORY F. ZOELLER
LILABERDIA BATTIES Attorney General of Indiana
Marion County Public Defender
Indianapolis, Indiana KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY K. MCCULLOUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1110-CR-955
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley Kroh, Judge Pro Tempore
Cause No. 49G03-0905-FC-051550
December 21, 2012
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
In McCullough v. State, 970 N.E.2d 795 (Ind. Ct. App., July 12, 2012), we
considered Anthony McCullough’s appeal from the revocation of his probation, in which
he raised two issues: whether the evidence was sufficient to revoke his probation and
whether the trial court properly calculated his credit for time served. We held that
statements made by the trial court at McCullough’s revocation and sanctions hearings
were inconsistent with ultimately revoking his probation. Accordingly, we reversed the
revocation without considering the substance of McCullough’s appeal. The State has
filed a petition for rehearing, alleging that there is no inconsistency in the trial court’s
findings and the trial court did not err in revoking McCullough’s probation.
We grant rehearing and upon further review of the record, agree with the State that
although the trial court’s statements are confusing, they are not inconsistent, and there
was no error in revoking McCullough’s probation on that basis. Accordingly, we
consider the two issues raised by McCullough in his brief. Concluding that sufficient
evidence supports revocation of McCullough’s probation and the trial court did not err in
calculating his credit for time served, we affirm the trial court.
Facts and Procedural History
The facts are set forth in more detail in our original opinion, but we briefly restate
the basic facts: in 2010, McCullough pleaded guilty to fraud on a financial institution
and was sentenced to eight years, with six years suspended and the remainder to be
served on home detention with electronic monitoring. He had both a probation
agreement with the county probation department and an electronic monitoring agreement
with Electronic Monitoring Services (“EMS”). Both agreements provided that he would
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obey all laws. In August 2011, while still serving his time on home detention,
McCullough was arrested when, during service of a search warrant at his home,
marijuana was discovered. That same day, a notice of violation of EMS rules was filed,
alleging McCullough had been arrested, that he had failed to provide work hours
verification, and that he owed a balance on his home detention fees. Several days later, a
notice of probation violation was also filed, alleging McCullough had been arrested and
charged with possession of marijuana and had failed to comply with EMS rules.
Because what was said at the revocation and sanction hearings and the context in
which it was said is important to our resolution, we recount the proceedings in some
detail. At the revocation hearing, the State called Willie Barnett, director of operation at
EMS, who testified regarding the EMS contract McCullough signed, and also called two
Indianapolis Metropolitan Police Department officers who testified regarding the search
of McCullough’s home. At the conclusion of the State’s evidence, the prosecutor made
the following motion:
[T]he State, for purposes of the probation violation, as well, the State would
move to admit or move to incorporate the evidence from the EMS violation
into the probation violation if we’re technically going forward on both,
instead of redoing everything.
Transcript at 75. McCullough then called his wife as a witness and testified on his own
behalf. At the conclusion of the hearing, the State noted that it “feels that it has met the
burden for both violations. Would ask that you find him in violation of not only the
electronic monitoring, but the probation.” Id. at 124. The trial court observed the EMS
notice alleged three violations, but no evidence had been presented from EMS regarding
the failure to verify work hours or the balance owed on fees; thus, the possession of
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marijuana was the “big issue being contested here today.” Id. at 134. As for that
remaining allegation, the trial court characterized the EMS notice as alleging that
McCullough was
arrested on or about August 1st of 2011 under Cause Number – and it’s got
an extra digit here, I think – XX-XXXXXXX. And just as an aside, I would ask,
State, if you could suggest to EMS they want to be more specific in what
they allege. . . . Is that – I don’t even know if that’s a valid cause number or
what . . . .
Id. at 132-33. Nonetheless, the trial court stated the evidence presented at the hearing
“do[es] convince the Court by a preponderance of the evidence that you did possess
marijuana there in the house in violation of EMS rules. . . . I think also that that [sic]
hand-in-hand you’re in violation of the conditions of probation.” Id. at 134-35. “So, the
Court, having found the violation of both EMS and probation, is going to take the
sanctions under advisement.” Id. at 139.
When the parties returned for the sanctions hearing, the trial court began by
stating:
State, I’ve been reviewing this. And this was the Court’s struggle
that I had during the hearing is that the pleading for the notice of violation
of Electronic Monitoring Services’s rules did not allege the marijuana – or
the new arrest for marijuana. So I – the Court’s constrained by what was
pled.
A notice of violation is – well, it’s very similar to a charging
information. And if it’s not charged, I don’t know how the Court can find a
notice of violation for EMS. So the Court is going to find that there is no
violation for the find – the Electronic Monitoring Services rules, as it
wasn’t pled that there was a – the possession of marijuana.
And, you know, I look at the notice filed. It doesn’t say anything
about that. So that’s the Court’s ruling on the notice of violation of EMS.
On the other hand, the probation violation was proven.
***
. . . So the Court is not entering a violation for the EMS notice, but is
finding that Mr. McCullough is in violation of his conditions of probation.
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Id. at 151-54. The trial court revoked McCullough’s probation and sentenced him to a
four-year executed term at the Department of Correction.
McCullough appealed the revocation of his probation, raising the following issues:
1) whether the evidence was sufficient to revoke his probation when the underlying case
for which he was arrested was dismissed and the trial court refused to find him in
violation of EMS rules, and 2) whether the trial court properly calculated his credit for
time served. Before addressing either of those issues, we interpreted the trial court’s
statements at the revocation and sanction hearings as follows:
. . . Following the presentation of evidence, the trial court concluded that
insufficient evidence was presented to revoke McCullough’s probation on
any of these allegations except for that regarding his arrest for possession of
marijuana.
The trial court initially concluded that evidence regarding
McCullough’s alleged possession of marijuana was sufficient to revoke his
probation, but later concluded that there is no violation for the possession
of marijuana. Yet, the trial court did revoke McCullough’s probation for
violation of his conditions of probation. This latter statement, concluding
McCullough violated his conditions of probation, contradicts the trial
court’s statement at the close of the evidentiary hearing that no evidence
was presented as to any other allegation.
McCullough, 970 N.E.2d 795, slip op. at 6-7 (internal citations and quotation omitted).
Accordingly, we held the trial court erred in revoking McCullough’s probation because it
had concluded insufficient evidence was presented as to each allegation. Id. The State
contends on rehearing that we misinterpreted the trial court’s statements. McCullough
has not filed a responsive brief on rehearing.
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Discussion and Decision
I. Trial Court’s Statements Regarding Violation
On reviewing the record again, we now agree with the State that the trial court’s
ruling was not contradictory. McCullough was serving an executed sentence on home
detention with electronic monitoring to be followed by a period of probation. After he
was arrested on August 1, 2011, EMS filed a notice of violation of the electronic
monitoring rules, and the State later filed a notice of violation of the conditions of his
probation. The revocation hearing was therefore addressing the two separate notices: 1)
the EMS notice alleging violations of the terms of McCullough’s electronic monitoring
services contract, and 2) the probation notice alleging violations of the conditions of
McCullough’s probation. The EMS notice alleged only that McCullough was arrested,
giving a cause number the trial court was unable to relate to any existing criminal case
but no other information, including the offense for which he was arrested. The probation
notice alleged that McCullough was arrested and charged with possession of marijuana,
giving a Marion Superior Court cause number and a pre-trial conference date. At the
revocation hearing, the trial court initially found a violation of both. The trial court took
the matter of revocation and sanctions, however, under advisement, and when the parties
returned for a sanctions hearing, the trial court reversed its ruling as to the EMS notice
only.
We initially read the trial court’s statements to mean that it was reversing its ruling
of a violation as to either notice because of the insufficiency of evidence regarding
possession of marijuana; if that had been the case, there would have been no basis for
revocation of probation because, as the trial court noted, no evidence was presented
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regarding the two other allegations of the EMS notice, and the only other allegation of the
probation notice concerned violation of the EMS rules. However, upon further
consideration, it is apparent the trial court’s statements were meant to convey that it was
reversing its ruling on the EMS violation because of the insufficiency of the EMS
pleading. The trial court’s finding that the State did not prove the alleged violation of
electronic monitoring because the allegation of an arrest in the EMS notice was not
specific enough does not contradict the trial court’s finding that the State did prove the
alleged violation of probation, which was pled with greater specificity.1 Importantly, we
note that on appeal, McCullough challenges the sufficiency of the evidence supporting
the finding of a violation of probation, but does not allege that the trial court erred by
revoking his probation when it did not actually find a violation. In other words,
McCullough acknowledged that the trial court’s statements about a violation not being
proven were directed only to the EMS notice. See Brief of Appellant at 10 (“[T]he trial
court . . . found that there was no violation for the [EMS] rules, as it was not pled that
there was a possession of marijuana.”). Accordingly, we will review McCullough’s
issues on their merits.
II. Proof of Violation
The trial court found McCullough had violated the terms of his probation by
possessing marijuana in his home. McCullough contends the evidence was insufficient to
support this finding because the underlying criminal case was dismissed.2
1
In fact, the State, at the conclusion of the sanctions hearing, asked the trial court, “just for future, just for
[EMS], would it have been appropriate if it just had the correct cause number instead of the case number on it[?]”
Tr. at 163. The trial court indicated “that would’ve been better.” Id.2
McCullough also alleges the trial court failed to provide a written statement of the evidence relied on and
reasons for revoking his probation in violation of his due process rights. See Sanders v. State, 825 N.E.2d 952, 955
7
“The court may revoke a person’s probation if: (1) the person has violated a
condition of probation during the probationary period . . . .” Ind. Code § 35-38-2-3(a).
The State must prove a violation of probation by a preponderance of the evidence. Ind.
Code § 35-38-2-3(f). As with other sufficiency matters, we do not reweigh the evidence
or judge the credibility of witnesses, and we look only to the evidence which supports the
judgment and any reasonable inferences therefrom. Richardson v. State, 890 N.E.2d 766,
768 (Ind. Ct. App. 2008) (quotation omitted). If substantial evidence of probative value
exists to support the trial court’s finding that a violation occurred, we will affirm the
revocation of probation. Dokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012).
The standard of proof for a finding of guilty is beyond a reasonable doubt and the
standard of proof for a probation violation is preponderance of the evidence, and we have
often stated that because of the lesser standard, a finding of guilt is not a necessary
precursor for a finding of a probation violation based on a new criminal offense. See
Dokes, 971 N.E.2d at 180-81 (“Because of the difference between the burden of proof
required to convict someone of a crime and the burden of proof required to revoke
probation, the court could revoke probation after finding [defendant] not guilty based on
the same evidence.”). Thus, the mere fact that the criminal charges against McCullough
for possession of marijuana were dismissed does not mean his probation could not be
revoked for the same. See McCullough, 970 N.E.2d 795, slip op. at 6.
(Ind. Ct. App. 2005) (listing a probationer’s due process rights when facing revocation), trans. denied. The written
statement requirement is a procedural device intended to promote accurate fact finding and review of revocation
decisions. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011). “A transcript of the evidentiary hearing,
although not the preferred way of fulfilling the writing requirement, is sufficient if it contains a clear statement of
the trial court’s reasons for revoking probation.” Id. The trial court’s reasoning is clear from the record and there is
no due process violation here.
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McCullough also points out the trial court refused to find him in violation of the
EMS rules as alleged in the EMS notice. As discussed in detail above, the trial court did
not find McCullough was not in violation of the EMS rules because of a lack of evidence
that he possessed marijuana but because of insufficient pleading in the EMS notice that
possession of marijuana was the violation alleged. The notice of probation violation
alleged possession of marijuana as a violation independent of any violation of EMS rules,
and therefore, the trial court’s decision on the EMS notice is irrelevant to the decision on
the probation notice.
Based upon the testimony of the officers serving a search warrant at McCullough’s
house and their observation and documentation of marijuana in several places throughout
the house, the trial court found the State had proved by a preponderance of the evidence
that McCullough had possessed marijuana in violation of the conditions of his probation.
McCullough had a possessory interest in the premises where the marijuana was found,
and although his wife and child also resided in the home with him, marijuana was found
in plain sight in a bathroom, and near items belonging to him in several other locations in
the home. See Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004) (to prove constructive
possession of contraband, State must show capability to maintain dominion and control
over items in question plus, when possession of premises is not exclusive, additional
circumstances such as contraband being in plain view of defendant or the mingling of
contraband with other items owned by defendant from which intent to maintain dominion
9
and control can be inferred). Substantial evidence exists in the record supporting the trial
court’s finding of a violation and its subsequent revocation of McCullough’s probation.3
III. Credit for Time Served
McCullough also appeals the trial court’s calculation of his credit for time served
when sentencing him. McCullough’s original sentence was eight years, with 730 days to
be executed on home detention and six years suspended to probation. Upon finding
McCullough had violated his probation:
the Court is going to show your probation is revoked and is sentencing you
to a four-year term at the Department of Correction.
***
In the Court’s opinion, your credit time that you have up to now
would be going towards your executed portion of your sentence that – that
you were serving at the time of the – the violation was filed.
Tr. at 158-59. The Abstract of Judgment prepared by the trial court for the probation
revocation proceeding shows a six year sentence, with 2190 days executed and the “No.
of days confined prior to sentencing” as 317 days. See Appellant’s Appendix at 27. The
317 days were explained by probation as follows:
the credit time would show that he has 35 days in jail, which was 1 day at
sentencing – or 1 day prior to sentencing, 1 day at sentencing when he was
taken in and moved to Community Corrections. The 33 days he’s been in
now – it’s 35 days. And the 563 that he spent on home detention, if you
move that to Credit Class I, it’s 282 days – actual days. So a total of 317
actual days of Class I credit.
Tr. at 167.
We address first McCullough’s contention that, in addition to credit for days
actually served on home detention, he should also get credit time for those days. 4 At the
3
We also note McCullough had not yet begun serving his term of probation as he was still serving his
executed sentence on home detention at the time of the violation. Probation may be revoked prospectively,
however. Hardy v. State, 975 N.E.2d 833, 837 (Ind. Ct. App. 2012).
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time of his original sentencing in January 2010, credit time could not be earned from time
served on home detention. Ind. Code § 35-38-2.6-6(a) (1994) (“A person who is placed
in a community corrections program under this chapter is entitled to earn credit time
under IC 35-50-6 unless the person is placed in the person’s home.”). Prior to the
sentencing for McCullough’s probation violation, however, this statute was amended to
allow those on home detention to earn credit time. Ind. Code § 35-38-2.6-6(a) (eff. July
1, 2010) (“A person who is placed in a community corrections program under this
chapter is entitled to earn credit time under IC 35-50-6.”). McCullough argues that under
the doctrine of amelioration, the revised statute should apply retroactively to him.
In Cottingham v. State, 971 N.E.2d 82 (Ind. 2012), our supreme court expressly
rejected an identical claim. The doctrine of amelioration entitles a defendant who is
sentenced after the effective date of a statute providing for more lenient sentencing to be
sentenced pursuant to that statute rather than the sentencing statute in effect at the time of
the commission of the crime. Id. at 85. Because McCullough, like the defendant in
Cottingham, was sentenced well before the effective date of the new statute, he is not
entitled under a strict application of the doctrine of amelioration to benefit from the
statutory amendment. See id. Moreover, our supreme court was persuaded that the
legislature intended the amendment to apply to those who are placed on home detention
on or after its effective date because the amendment states a person who “is placed in
community corrections” is entitled to credit time. Id. at 86 (quoting Ind. Code § 35-38-
4
In Brown v. State, 947 N.E.2d 486, 488 n.2 (Ind. Ct. App. 2011), we noted that the Indiana Code uses the
language “credit time” as opposed to “good time credit” to refer to the statutory reward an offender receives for
certain behavior or achievements. Though “good time credit” is common language in our courts, we use the
statutory term “credit time” to refer to this additional time, and “credit for time served” to refer to the actual days
served.
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2.6-6) (emphasis in original). Thus, McCullough is not eligible for credit time for the
time he served on home detention.
McCullough also challenges the trial court’s calculation that he was entitled to 317
days credit for time served, arguing that “[i]n essence what the trial court was doing was
reducing the actual time of 563 days down to 282 days . . . .” Br. of Appellant at 14. The
trial court sentenced McCullough to four years executed for the probation violation, but
the abstract shows a sentence of six years executed. This is apparently intended to
represent the two-year executed sentence he was serving at the time of his violation plus
the four-year executed sentence for the probation revocation.5 All parties seemed to
agree that McCullough had ninety-seven days remaining to serve on his original two-year
executed sentence. Added to his four-year sentence for the probation revocation,
McCullough should serve 1,557 days (779 days with credit time). The “No. of days
confined prior to sentencing” as shown on the abstract represents actual days served;
credit time will then be calculated based on that figure. Thus, when 317 actual days plus
317 credit time days are applied to McCullough’s sentence, he will have 1,556 days left
to serve (778 days with credit time).6 The trial court did not err in calculating
McCullough’s credit for time served.
Conclusion
The trial court did not err in revoking McCullough’s probation because sufficient
evidence was presented to support a finding that he had violated a condition of probation
5
The trial court clarified at the sanctions hearing that “the abstract will read a six-year executed sentence.
But Mr. McCullough is going to get credit for the two years that he’s served. But the four years will be executed as
the violation of probation.” Tr. at 166.
6
The same result would have been reached by simply stating that McCullough was entitled to credit time
of 633 days (563 actual days on home detention plus thirty-five actual days in jail plus thirty-five credit time days),
but the calculation as the trial court has done it works within the parameters of the abstract.
12
by possessing marijuana. Moreover, the trial court did not err in calculating the credit for
time served to which McCullough was entitled. The judgment of the trial court is
therefore affirmed.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
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