Terence C. Kendrick, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Apr 19 2018, 9:13 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terence C. Kendrick, Jr., April 19, 2018
Appellant-Defendant, Court of Appeals Case No.
02A03-1710-CR-2465
v. Appeal from the Allen Superior
Court.
The Honorable Samuel R. Keirns,
State of Indiana, Magistrate.
Appellee-Plaintiff. Trial Court Cause No.
02D05-1605-F6-610
Friedlander, Senior Judge
[1] Terence Kendrick, Jr., appeals the trial court’s decision revoking his probation
and ordering him to serve his previously-suspended sentence. He raises two
issues for review, which we expand and restate as:
1. Whether the evidence was insufficient to support revocation;
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2. Whether the trial court abused its discretion in ordering him to
serve his previously-suspended sentence; and
3. Whether he was denied due process at his revocation hearing.
We affirm.
[2] On November 10, 2016, Kendrick pleaded guilty to Level 6 felony resisting law
enforcement and Class C misdemeanor refusal to identify self. The trial court
imposed a two-year suspended sentence and placed Kendrick on probation for
two years.
[3] On March 17, 2017, the State filed a verified petition for revocation of
probation, alleging that Kendrick failed to report for supervision as instructed
and that his last face-to-face contact with probation was on December 15, 2016.
On June 1, 2017, Kendrick admitted the violations of probation, and the court
returned him to probation with the additional condition of “zero tolerance.”
Appellant’s App. Vol. II, p. 38.
[4] On August 2, 2017, another verified petition for revocation of probation was
filed, alleging that Kendrick had not maintained good behavior, because “[o]n
or about the 1st day of August, [sic] 2017, [he] allegedly committed the offense
of False Informing, a Class A Misdemeanor.” Id. at 39. On August 22, 2017,
Kendrick requested to waive his right to an attorney and proceed pro se, which
the court granted. On that same day, a contested revocation hearing was set for
September 28, 2017.
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[5] At the contested hearing, Officer David Bush, with the Fort Wayne Police
Department, testified that on August 1, 2017, at around 3:30 a.m., he was
patrolling a church parking lot where the department had previously received
reports of vandalism, trespassing, and theft. Officer Bush saw a vehicle parked
in the lot. He approached the vehicle to see if anyone was inside and to
investigate a potential trespassing offense. He found Kendrick inside the
vehicle, and Kendrick told the officer that he was praying. The officer asked
Kendrick if he had identification that contained his name, and Kendrick replied
that he did not. Officer Bush then asked Kendrick to provide his name, date of
birth, and social security number. When the officer checked the information
Kendrick provided, however, he determined that the information was false.
The officer learned Kendrick’s identity after providing Kendrick’s license plate
number to a police dispatcher. The officer also learned that a civil body
attachment had been issued for Kendrick; that Kendrick’s wallet, containing
identification, was in the vehicle; and that the vehicle was registered in
Kendrick’s name, although he initially told the officer the vehicle was registered
to his girlfriend.
[6] Kendrick then cross-examined Officer Bush. After Kendrick concluded the
cross-examination, the trial court informed Kendrick he could “put on any
evidence that you have.” Id. at 24. Kendrick told the court he had no evidence
to present, but that he wanted to act as his own witness. Kendrick then testified
as follows: “By no means am I denying saying a lie. I told a lie.” Id. at 26. He
further testified that when he encountered the police in the church parking lot,
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he “didn’t think that an official investigation was happening,” and he “wasn’t
committing any crime back there.” Id.
[7] Following the contested hearing, the trial court found Kendrick had violated
the terms of his probation and revoked his probation and ordered him to serve
his previously suspended two-year sentence in the Department of Correction
(DOC). Kendrick now appeals.
[8] “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). It is within the trial court’s discretion to determine the conditions of
probation and to revoke probation if those conditions are violated. Heaton v.
State, 984 N.E.2d 614 (Ind. 2013). We review a trial court’s decision to
revoke probation for an abuse of discretion. Ripps v. State, 968 N.E.2d 323 (Ind.
Ct. App. 2012). An abuse of discretion occurs when the court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id.
1.
[9] Kendrick contends his probation should not have been revoked because the
State failed to present sufficient evidence to prove he committed false
informing. We review insufficiency of evidence claims in a probation
proceeding as we do any other sufficiency of the evidence question. Smith v.
State, 727 N.E.2d 763 (Ind. Ct. App. 2000). We will not reweigh evidence or
judge credibility of witnesses. Id. We look only at the evidence favorable to the
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State and all reasonable inferences therefrom. J.J.C. v. State, 792 N.E.2d 85(Ind. Ct. App. 2003). The State’s burden of proof regarding an alleged
probation violation is proof by a preponderance of the evidence. Id.[10] A person is guilty of false informing if he or she gives false information in the
official investigation of the commission of a crime, knowing the information to
be false. Ind. Code § 35-44.1-2-3(d)(1) (2016). According to Kendrick, the
evidence was insufficient to prove the police were involved in an official
investigation at the time he provided the false information. We disagree.
[11] A police officer on routine patrol saw Kendrick’s vehicle parked in a deserted
church parking lot at 3:30 a.m. The officer testified that the police department
previously had received from the church reports of vandalism, trespassing, and
theft, and that, upon observing Kendrick’s vehicle, the officer was investigating
a “potential trespassing offense.” Tr. p. 14. Sufficient evidence was provided to
show the police officer was involved in an official investigation at the time
Kendrick provided false information.
2.
[12] Kendrick next contends that the trial court abused its discretion when it revoked
his probation and sentenced him to his previously-suspended two-year sentence.
According to Kendrick, “the facts and circumstances surrounding [his] alleged
[probation] violation are not indicative of someone who should not be able to
benefit from the rehabilitative aspect of probation;” and full revocation of his
probation was unwarranted due to mitigating circumstances such as “he was at
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a church praying,” he “eventually ha[d] a desire to be honest” with the police,
and he has five children and is “a contributing member of society.” Appellant’s
Br. p. 11.
[13] Probation revocation is a two-step process. First, the trial court must determine
that a violation of a condition of probation actually occurred. Woods v. State,
892 N.E.2d 637 (Ind. 2008). Second, the court must determine if the violation
warrants revocation of probation. Id. The decision to revoke probation is
within the sole discretion of the trial court. Id. Violation of a single condition
of probation is sufficient to revoke probation. Beeler v. State, 959 N.E.2d 828(Ind. Ct. App. 2011), trans. denied.
[14] A trial court’s sentencing decisions for probation violations are reviewable using
the abuse of discretion standard. Prewitt, 878 N.E.2d 184. Trial courts are not
required to consider mitigating factors when imposing sanctions for probation
revocation. See Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993)
(holding trial court did not err by declining to consider mitigating circumstances
before imposing sanction because Indiana Code section 35-38-2-3 does not
require a trial court to consider aggravating and mitigating factors when
revoking probation), holding narrowed by Patterson v. State, 659 N.E.2d 220, 222-
23 n.2 (Ind. Ct. App. 1995) (trial courts should consider a probationer’s mental
state when deciding sanction for probation revocation).
[15] The evidence presented at Kendrick’s contested hearing established by a
preponderance of the evidence that he violated his probation by committing the
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offense of false informing. The violating offense was similar to the offenses for
which Kendrick already was on probation, i.e., resisting law enforcement and
refusal to identify self. Revocation of Kendrick’s previously suspended
sentence did not go against the logic and effect of the facts and circumstances
surrounding his violation. As such, the trial court’s order revoking probation
and sentencing him to the DOC for the suspended two-year sentence was not
an abuse of discretion.
3.
[16] Kendrick also contends his right to due process under the Fourteenth
Amendment was violated because he was not “afforded the resources and time
to obtain and present relevant and exculpatory evidence.” Appellant’s Br. p.
17. He alleges that he possessed (1) evidence that no 911 emergency calls were
placed from the church regarding vandalism, theft, or trespassing, and (2) a
letter from the pastor of the church granting him permission to be on church
property after hours. He argues, essentially, he was not afforded the time to
gather the evidence so that it could be offered at the probation revocation
hearing.
[17] The United States Supreme Court has held that the Due Process Clause applies
to probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct.
1756, 36 L. Ed. 2d 656 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct.
2593, 33 L. Ed. 2d 484 (1972)). While a defendant is not entitled to full due
process rights for a probation revocation, he is entitled to certain due process
rights, including: a written notice of the claimed violations, disclosure of
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the evidence against him or her, the opportunity to be heard in person and
present witnesses and documentary evidence, the right to confront and cross-
examine witnesses, a neutral and detached hearing body, and a written
statement by the factfinder regarding the evidence relied upon and reason for
revocation. Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011).
[18] Kendrick’s right to due process was not violated. At the contested hearing,
during his cross-examination of Officer Bush, Kendrick told the trial court that
he “had 911 calls pulled and there were no calls made within the entire year of
any complaints of trespassing or anything the whole year.” Tr. p. 23. The trial
court told Kendrick that he was free to enter those records into evidence and to
use those records to cross examine the witness; however, Kendrick made no
attempts to enter any records into evidence. Id. At the conclusion of the
presentation of evidence, in his argument to the court, Kendrick stated that he
wished he had evidence to prove he was not trespassing, and that he had a letter
from the pastor of his church allowing him to be in the area; however, he also
stated that he was going to wait to present that evidence to the misdemeanor
court where he was charged with the false informing offense. Kendrick added
that he “wasn’t sure coming into the situation there was going to be a whole
[probation revocation] hearing;” however, he did not request a continuance
from the trial court. Id. at 36. Under these circumstances, we cannot conclude
that Kendrick’s constitutional right to due process was violated.
[19] The evidence was sufficient to revoke Kendrick’s probation; the trial court did
not abuse its discretion when it revoked his probation and ordered him to serve
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his previously-suspended sentence; and his right to due process was not
violated.
[20] Judgment affirmed.
Kirsch, J., and Brown, J., concur.
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