Gary L. Taylor v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 24 2019, 9:45 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Hanson Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary L. Taylor, January 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-599
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Samuel R. Keirns, Magistrate
Trial Court Cause No.
02D06-1708-F5-232
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019 Page 1 of 10
[1] Gary L. Taylor (“Taylor”) appeals the trial court’s order revoking his probation
and ordering him to serve his six-year sentence in the Indiana Department of
Correction (“the DOC”).
[2] We affirm.
Facts and Procedural History
[3] In October 2017, Taylor pleaded guilty to Count I, criminal confinement1 as a
Level 5 felony; Count II, domestic battery with a previous domestic battery
conviction2 as a Level 6 felony; and Count V, resisting law enforcement3 as a
Class A misdemeanor.4 Pursuant to his plea agreement, the trial court
sentenced Taylor to six years for Count I, three years of which were to be
served on home detention with Allen County Community Corrections
(“Community Corrections”) and three years suspended to probation. The trial
court also sentenced Taylor to two years for Count II and one year for Count V
and ordered the sentences for all three convictions to be served concurrently.
[4] Community Corrections approved Taylor’s participation in the home detention
program on October 30, 2017, only after Taylor’s friend Maria agreed that he
1
See Ind. Code § 35-42-3-3(b)(1)(C).
2
See Ind. Code § 35-42-2-1.3(b)(1)(A).
3
See Ind. Code § 35-44.1-3-1(a)(3).
4
While the State reports that Taylor also pleaded guilty to Count III, a second count of Level 6 felony
domestic battery, and Count IV, Level 6 felony strangulation, Appellee’s Br. at 5, we note that the trial court
dismissed those counts as part of the plea agreement. Appellant’s App. Vol. 2 at 36, 44.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019 Page 2 of 10
could serve the first two weeks of detention in her home. However, friction
between Maria and Taylor arose when Taylor overstayed his welcome, leaving
Maria to pay for his food, housing, and other living expenses. On November
26, 2017, Maria told Taylor he could no longer stay in her home. The two
fought, and county police officers were called about the domestic disturbance.
Before leaving Maria’s home that night, Taylor called Community Corrections
to alert them about the change in his housing situation, and a representative
from Community Corrections ordered Taylor to report directly to the
Community Corrections facility “to resolve this residential issue.” Tr. Vol. 1 at
10.
[5] As part of home detention, Taylor was required to wear an electronic GPS
monitoring device (“ankle monitor”). Testimony at the revocation hearing
revealed that Taylor did not, as ordered, go directly to Community Corrections.
Community Corrections Officer Kevin McIntosh (“Officer McIntosh”) testified
that his unit had tracked Taylor, via his ankle monitor, travelling from Maria’s
home to a nearby housing addition where he “milled around” for some time.
Id. at 9.
[Taylor] then went to a gas station and walked across a large field
and milled around there for a few minutes. Then he crossed
over, I believe it was Maplecrest, over to the rear of a cemetery
and was walking behind the cemetery. He then went to a church
across the road and milled around the church, hid behind a
dumpster it appeared for a few minutes, and then continued on
across the road behind Galbraith’s Landscaping, along the creek,
several hundred yards, I believe, off the road.
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Id. at 9-10.
[6] County police officers responded to the report of a domestic disturbance and,
after finding Taylor by the creek, detained him. Officer McIntosh joined the
county officers, and when he got about twenty feet away from Taylor, he could
hear the beeping of Taylor’s ankle monitor. Officer McIntosh explained that
the ankle monitor makes a beeping noise “whenever a message has been sent to
it.” Id. at 10. A printout revealed that Community Corrections personnel had
sent three messages to Taylor’s ankle monitor and had also tried to call him
three times. Taylor explained that he did not answer the calls because he was
on the phone with someone else at the time. Id. at 11-12. Before Taylor was
taken into custody, police confiscated a black backpack and a small paring
knife, which the police considered to be “a weapon”; Taylor had taken both
items from Maria’s home without her permission. Id. at 12-13.
[7] On November 27, 2017, the State charged Taylor with Class A misdemeanor
unauthorized absence from home detention, a charge to which Taylor later
pleaded guilty.5 Appellant’s Br. at 15. Over the following week, the State filed a
petition to revoke Taylor’s placement in home detention, and the Allen County
Probation Department filed a petition to revoke probation. The latter petition
alleged that Taylor: (1) failed to maintain good behavior when he committed
the new crime of unauthorized absence from home detention; and (2) failed to
5
Discussing this charge in his brief, Taylor initially stated, “As of the date of the contested hearing, [Taylor]
had maintained his innocence and was preparing for a jury trial in that matter.” Appellant’s Br. at 12.
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maintain good behavior when he did not successfully complete home detention.
Appellant’s App. Vol. II at 50.
[8] During a February 2018 hearing on the petition to revoke his probation, Taylor
argued that he had left his authorized residence, Maria’s home, only after
Community Corrections ordered him to “walk down” to their offices. Tr. Vol. 1
at 40-41. The evidence revealed that Taylor “milled around” a nearby housing
addition, went to a gas station, walked around the back of a cemetery,
wandered around a church, hid behind a dumpster for a few minutes, and then
wandered along a creek. Id. at 9-10. Taylor admitted that he took a circuitous
route to Community Corrections but testified that it was not his “intention to
evade law enforcement.” Id. at 40. He claimed that he took that route because
Maria had threatened him with a knife, and he was afraid she might continue to
follow him. Id. at 38, 39.
[9] The trial court found that, while Taylor was authorized to leave Maria’s home,
he was not authorized to travel to the gas station or the church, nor was he
authorized to stop behind the dumpster. Id. at 61-62. Furthermore, Taylor did
not respond to the clear beeping of his monitor—notification that Community
Corrections had sent messages to his monitor. Id. at 62. The trial court found
that Taylor had violated the terms of both his Community Corrections and his
probation, revoked Taylor’s participation in those two programs, and ordered
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him to serve his six-year sentence in the DOC. Taylor appeals only the
revocation of his probation and his six-year executed sentence in the DOC.6
Discussion and Decision
[10] Citing to Indiana Appellate Rule 7(B), Taylor characterizes his issues as
whether the revocation of his probation and the imposition of his six-year
sentence were inappropriate in light of the nature of the offenses and the
character of the offender. Appellant’s Br. at 4. We remind Taylor’s counsel that
a trial court’s action in a post-sentence probation violation proceeding is not a
criminal sentence as contemplated by Appellate Rule 7(B). Wooten v. State, 946
N.E.2d 616, 622 (Ind. Ct. App. 2011) (citing Jones v. State, 885 N.E.2d 1286,
1290 (Ind. 2008) (“A trial court’s action in a post-sentence probation violation
proceeding is not a criminal sentence as contemplated by the rule. The review
and revise remedy of App. R. 7(B) is not available.”)), trans. denied. Rather than
the independent review afforded sentences under Appellate Rule 7(B), a trial
court’s sentencing decisions for probation violations are reviewable using the
abuse of discretion standard. Id. Thus, to challenge the trial court’s decision to
revoke Taylor’s probation and to impose his suspended sentence, defense
counsel needed to allege that the trial court abused its discretion. Counsel has
6
Taylor contends that his appeal “focuses entirely on what constitutes an appropriate sanction for [his]
admitted violation.” Appellant’s Br. at 15 (emphasis added). Yet, one paragraph later, he contends that the
revocation of his probation was inappropriate. Id. We address both claims.
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failed to do so. Moreover, even if counsel had raised such a valid claim, his
arguments would not establish that the trial court abused its discretion.
[11] “‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.
App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.
denied. “Courts in probation revocation hearings ‘may consider any relevant
evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.
State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial
court to determine the conditions of a defendant’s probation and to revoke
probation if the conditions are violated.” Id. Our court has said that “all
probation requires ‘strict compliance’” because once the trial court extends this
grace and sets its terms and conditions, the probationer is expected to comply
with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641
(Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”
Id.[12] Taylor first argues that, regardless of whether he violated a term of his
probation, the “pre-emptive revocation of his probation before he was even
placed on probation is inappropriate under these circumstances.” Appellant’s Br.
at 18. We disagree. Our court has held that “a defendant’s probationary period
begins from the date of his sentencing and a violation of the terms of his
probation may occur even though he has not yet begun serving his sentence, let
alone his probation.” Baldi v. State, 908 N.E.2d 639, 642 (Ind. Ct. App. 2009)
(citing Baker v. State, 894 N.E.2d 594, 598 (Ind. Ct. App. 2008)); see also Waters
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v. State, 65 N.E.3d 613, 617 (Ind. Ct. App. 2016) (“[A] defendant can have his
probation revoked prospectively and his suspended time imposed even before
he begins the probation phase of his sentence.”) Accordingly, Taylor’s
probation was subject to revocation regardless of whether he had begun to serve
the probationary phase of his sentence.
[13] Taylor’s probation required that he maintain “good behavior.”7 Appellant’s App.
Vol. 2 at 50. Taylor’s admission that he pleaded guilty to Class A misdemeanor
unauthorized absence from home detention constituted an admission that he
was not maintaining good behavior. This factor alone provided proof by a
preponderance of the evidence that Taylor had violated a condition of his
probation.8 See Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (“One
violation of a condition of probation is enough to support a probation
revocation.”).
[14] Where, like here, the trial court finds that a defendant has violated a condition
of his probation, it may (1) continue the probation with or without modifying
7
While the terms of Taylor’s probation are not in the record before us, we believe that good behavior was a
term of Taylor’s probation. The State alleged in its petition for probation revocation that Taylor violated the
conditions of his probation when he “[d]id not maintain good behavior,” Appellant’s App. Vol. 2 at 50; Taylor
did not dispute that maintaining good behavior was a condition of his probation.
8
Taylor argues that it was improper for the trial court to revoke his probation because: (1) his act of leaving
the home was not “precipitated” by his behavior; (2) he was faced with the challenge of walking eight miles
to the Community Corrections office, which was a long and complicated route; and (3) his explanation for
his odd course of travel was consistent with his testimony that he feared Maria might try to follow him.
Appellant’s Br. at 16-17. These arguments are a request that this court reweigh the evidence, which we cannot
do. See Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009) (in determining whether trial court abused its
discretion, we do not reweigh evidence).
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the probation conditions; (2) extend the probationary period for up to one year;
or (3) revoke the probation and order the execution of all or part of the sentence
suspended at the initial hearing. Ind. Code § 35-38-2-3(h). Here, the question is
whether the trial court abused its discretion when it ordered Taylor to serve his
entire six-year sentence. We find no abuse of discretion.
[15] Taylor was allowed to participate in home detention only because his friend
Maria had agreed that he could stay with her for the first two weeks of his home
detention. Almost four weeks later, Taylor was not “apparently working,” was
still living with Maria, and was contributing little toward the household
payments.9 Tr. Vol. 1 at 62. Maria asked Taylor to leave, and he did so. It is
true that Taylor took the effort to call Community Corrections. Nevertheless,
he made the mistake of not going directly to their office. Furthermore, Taylor
did not respond to either the beeping of his monitor or the telephone calls from
Community Corrections personnel. The trial court noted that Taylor “did not
respond to [Community Corrections’] attempts to communicate and verify the
reasoning for [his] deviation in [his] route of travel to the point that
[Community Corrections] had to dispatch officers in an attempt to locate [him]
because [he was] not where [he was] supposed to be or doing what [he was]
supposed to be doing.” Tr. Vol. 2 at 63-64.
9
The trial court heard testimony that Taylor was to start a new job two days after he was detained.
However, speaking with Taylor, the trial court said, “[Y]ou weren’t apparently working and you weren’t
apparently paying much and you weren’t apparently doing a whole lot.” Tr. Vol. 1 at 62.
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[16] The Allen County Probation Office recommended that the trial court revoke
Taylor’s probation and commit him to the DOC. Appellant’s App. Vol. 2 at 53,
54. On appeal, Taylor has provided no evidence that the trial court abused its
discretion when it ordered him to serve his suspended sentence. While it was
within the trial court’s discretion to continue Taylor’s probation, with or
without modifying the probation conditions, or to extend the probationary
period for up to one year, we cannot say that the trial court abused its discretion
when it ordered Taylor to serve his suspended sentence of six years in the DOC.
[17] Affirmed.
Riley, J., and Robb, J., concur.
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