Jacqueline R. Parke v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 13 2017, 8:24 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacqueline R. Parke, September 13, 2017
Appellant-Defendant, Court of Appeals Case No.
48A02-1702-CR-381
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Thomas Newman, Jr., Judge
Trial Court Cause No.
48D03-1006-FB-246
Kirsch, Judge.
[1] Jacqueline R. Parke (“Parke”) appeals the trial court’s revocation of her
probation and the resulting sentence. On appeal, she contends that the
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revocation was not supported by sufficient evidence and that the trial court
abused its discretion by ordering her to serve the rest of her previously-
suspended sentence in the Indiana Department of Correction (“DOC”).
[2] We affirm.
Facts and Procedural History
[3] In July 2011, Parke pleaded guilty to Class B felony burglary, Class D felony
theft, Class C felony forgery, and two counts of Class D felony fraud, pursuant
to a plea agreement that capped her executed sentence at ten years and required
her “to be evaluated for the Madison County Drug Court [(“Drug Court”)]
program.” Appellant’s App. Vol. II at 5. The trial court sentenced Parke to an
aggregate sentence of fifteen years, with six years executed on home detention
and nine years suspended to probation.
[4] In November 2011, Parke was accepted into and agreed to comply with the
rules of the Drug Court program. As part of that agreement, Parke
acknowledged that the trial court would revisit her sentence if she did not
complete the program. Id. at 54. On September 27, 2012, the Drug Court filed
a request that Parke be terminated from the program,1 which the trial court
denied. In December 2012, when Parke again failed to appear in Drug Court,
1
Drug Court alleged that Parke had failed to appear in court and had violated the Drug Court rules that
prohibited her: (1) from threatening a Drug Court participant or staff member in a violent way; and (2) from
having a romantic relationship with another Drug Court participant. Appellant’s App. Vol. II at 58.
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the trial court administratively terminated Parke from the program, finding that
her thirty-day absence from Drug Court constituted a voluntary withdrawal
from the program. Id. at 10. The trial court held a sanctions hearing, and, on
January 28, 2013, the trial court ordered Parke to complete her sentence with
DOC. Id. at 64, 65.
[5] Parke filed two unsuccessful motions to modify her sentence, one in September
2013 and one in November 2014. In August 2015, the trial court granted a
sentence modification, releasing Parke from DOC and placing her back on
probation with the requirement that she complete the Re-Entry Court program.
Id. at 67. As part of the Re-Entry Court program, Parke enrolled in services at
Sowers of Seeds Counseling (“Sowers of Seeds”) in Anderson, Indiana. As we
describe in greater detail below, Parke was later charged with an April 2016
burglary of the Sowers of Seeds building.
[6] On May 11, 2016, the trial court received notice from the Re-Entry Court
program requesting that Parke be terminated from the program for failing to
submit to multiple drug tests, testing positive for cocaine, and absconding from
the program. Id. at 72-73. That same day, the trial court administratively
terminated Parke from the Re-Entry Court program after finding that she
voluntarily withdrew from the program by “absconding” for more than thirty
days. Id. at 15, 75.
[7] On December 28, 2016, the probation department filed a notice of probation
violation, alleging that Parke had violated the conditions: (1) that she behave
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well in society and not commit a crime; and (2) that she successfully complete
the Re-Entry Court program. Id. at 76. The trial court held a hearing on
January 23, 2017, during which (1) Parke admitted that she failed to complete
the Re-Entry Court program, and (2) the State presented evidence that Parke
committed the April 2016 burglary. During the disposition portion of the
hearing, Parke presented evidence that she had recently been diagnosed with
bipolar disorder and that she had been helping to care for her family. Tr. at 31,
40.
[8] The trial court found that the State had proven both allegations by a
preponderance of the evidence and revoked Parke’s probation. The trial court
ordered Parke to serve the remainder of her sentence in DOC. Parke now
appeals. We add facts pertinent to the burglary in the sufficiency section below.
Discussion and Decision
[9] Parke challenges the sufficiency of the evidence to support the revocation of her
probation and contends that the trial court abused its discretion when it ordered
her to serve the remainder of her previously-suspended sentence in DOC.
“‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.
Ct. App. 2014) (quoting 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). “Once a trial
court has exercised its grace by ordering probation rather than incarceration,
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the judge should have considerable leeway in deciding how to proceed.”
Prewitt, 878 N.E.2d at 188. “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.” Id. Accordingly, 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.” Jackson, 6 N.E.3d
at 1042.
[10] Probation revocation is a two-step process. Id. “First, the trial court must make
a factual determination that a violation of a condition of probation actually
occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).
“Second, if a violation is found, then the trial court must determine the
appropriate sanctions for the violation.” Id. We discuss those elements in turn.
A. Sufficient Evidence to find Probation Violation
[11] Parke argues that the trial court erred in revoking her probation. The court may
revoke a person’s probation if the person has violated a condition of probation
during the probationary period. Ind. Code § 35-38-2-3. On December 28,
2016, the State filed a notice alleging:
7. That you violated those conditions of your sentence and/or
probation as follows:
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(a) Not to violate the laws of Indiana or the U.S. and
failure to behave well in society: On/about 04/16/2016,
you are alleged to have committed the following new
criminal offense(s): Burglary and Theft, as filed in
Madison County Circuit Court, Division I under cause
number(s): 48C01-1605-FS-1050; [and]
b) Failure to successfully complete Re-Entry Court.
Appellant’s App. Vol. II at 76.
[12] Parke admits that she violated her probation by failing to successfully complete
the Re-Entry Court program.2 Tr. at 4. However, she contends that there was
insufficient evidence for the trial court to find by a preponderance of the
evidence that she committed the crime of burglary. Appellant’s Br. at 8. We
begin by noting that Parke’s admission to having violated one condition of her
probation is sufficient, alone, to support probation revocation. See Figures v.
State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010) (“Proof of any one violation is
sufficient to revoke a defendant’s probation.”). Even so, we find that the State’s
evidence, which we summarize below, was sufficient to support the trial court’s
finding that Parke committed burglary in April 2016.
2
The notice requesting that Parke be terminated from the Re-Entry Court program alleged, in part, that
Parke failed to submit to multiple drug tests, tested positive for cocaine, and absconded from the program.
Appellant’s App. Vol. II at 72-74. The trial court terminated Parke from the Re-Entry Court program finding
that Parke’s absence from the program was equivalent to her having voluntarily withdrawn.
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[13] To revoke Parke’s probation on the basis that she committed the criminal
offense of burglary, the State had to prove by a preponderance of the evidence
that Parke broke and entered a structure of another with intent to commit a
felony therein, that is, that Parke broke and entered the Sowers of Seeds
building with intent to commit theft therein. Ind. Code § 35-43-2-1. Parke was
a client of, and volunteered for, Sowers of Seeds; however, she did not have a
key and had no reason to be in or near that establishment in the early hours of
Saturday, April 16, 2016. Tr. at 11. Just past midnight that night, Sowers of
Seeds’s newly installed security cameras recorded Parke walking up to the front
door of the business, and later to the back door, and using a key to try to enter
the building. Being unable to open those doors, Parke walked to a side door, a
window of which was later found broken. Id. at 6. Three hours later, a security
camera recorded Parke leaving the building by the same side door and walking
toward her car. Id. at 23-24.
[14] On Monday, April 18, 2016, Sowers of Seeds Executive Director, Susan
Bottoms (“Bottoms”), arrived at the building and discovered the broken
window. Id. at 6. Further investigation revealed that a key, which had been in
the office where Parke volunteered, was missing. Id. at 7. After reviewing the
security tapes, Bottoms identified Parke as the person on the security recording.
Id. Inside the building, Bottoms found that a locked filing cabinet, where the
petty cash was kept, had been damaged by someone trying to repeatedly pry it
open. Id. at 6, 11, 14.
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[15] “We review insufficiency of evidence claims in a probation proceeding as we do
any other sufficiency of the evidence question.” Pierce v. State, 44 N.E.3d 752,
755 (Ind. Ct. App. 2015). We will not reweigh evidence or judge credibility of
witnesses. Id. We look only at the evidence favorable to the State and all
reasonable inferences therefrom. Id. When the alleged violation is the
commission of a new crime, the State does not need to show that the
probationer has been convicted of another crime. Richeson v. State, 648 N.E.2d
384, 389 (Ind. Ct. App. 1995), trans. denied. Where a decision is based, at least
in part, on circumstantial evidence, the “evidence need not overcome every
reasonable hypothesis of innocence.” Johnson v. State, 9 N.E.3d 186, 191 (Ind.
Ct. App. 2014), trans. denied. Upon arriving at the Sowers of Seeds premises,
Parke did not immediately break into the building; instead, she confidently tried
a key on each door, a key that Bottoms later discovered was missing from the
office where Parke had volunteered earlier that same day. A locked filing
cabinet containing the petty cash showed signs of Parke’s repeated attempts to
pry it open. This evidence was sufficient to support a finding that Parke entered
the building with the intent to commit the felony of theft therein.
[16] On appeal, Parke argues there was insufficient proof that she entered the
building and no evidence that she intended to commit theft. Appellant’s Br. at 9.
We disagree. Here, the evidence from the security camera supports a strong
and reasonable inference that Parke was the person who broke into the facility.
Additionally, Parke’s intent to commit theft can reasonably be inferred from the
apparent efforts to pry open the filing cabinet where petty cash was stored.
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“Burglars rarely announce their intentions at the moment of entry, so their
intent to commit a specific felony at the time of breaking and entering may be
inferred from the circumstances.” Baker v. State, 968 N.E.2d 227, 229-30 (Ind.
2012). Parke was a Sowers of Seeds client and performed community service
there; it is likely that she knew money was stored inside the locked cabinet.
The trial court had ample support for its decision to revoke Parke’s probation.
B. Sentence
[17] Parke argues that the trial court abused its discretion by ordering her to serve
the remainder of her previously-suspended sentence in DOC. “We review a
trial court’s sentencing decision in a probation revocation proceeding for an
abuse of discretion.” Johnson v. State, 62 N.E.3d 1224, 1229-30 (Ind. Ct. App.
2016). “An abuse of discretion occurs if the trial court’s decision is against the
logic and effect of the facts and circumstances before the court.” Id.[18] Here, Parke was given a second chance to serve in alternative placement. That
is, Parke had previously been placed in home detention and Drug Court, and
when Drug Court terminated Parke’s participation due to her thirty-day
absence, the trial court ordered Parke to serve the remainder of her sentence
with DOC. Parke, however, was given a second chance when, in 2015, the trial
court modified her sentence, placed her back on probation, and ordered her to
successfully complete the Re-Entry Court program. Parke did not complete the
Re-Entry Court program and was again terminated from that court for
“absconding.” Appellant’s App. Vol. II at 15. In April 2016, Parke committed
the burglary at Sowers of Seeds.
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[19] During the sentencing portion of the probation revocation hearing, the trial
court explained:
[T]his court has stuck it’s [sic] neck out for Jacqueline Parke so
many times. I’ve given her many many opportunities and it’s
unbelievable how she can do well for a while and then she just
sort of blows everything off and takes those opportunities that I
gave her and then takes advantage of me and there’s just nothing
left so I’m revoking her and sending her to the [DOC.]
Tr. at 46. Under these circumstances, the trial court’s order that Parke
complete her sentence in DOC is not clearly against the logic and effect of the
facts and circumstances. See Jackson, 6 N.E.3d at 1042 (trial court abuses its
discretion where the decision is clearly against logic and effect of facts and
circumstances).
[20] Affirmed.
Najam, J., and Brown, J., concur.
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