Terrance Smoots, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Mar 31 2016, 8:53 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard Walker Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrance Smoots, Jr., March 31, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1506-CR-746
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1112-FB-2280
Najam, Judge.
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Statement of the Case
[1] Terrance Smoots, Jr. appeals the trial court’s revocation of his probation.
Smoots raises a single issue for our review, namely, whether the trial court
denied him his due process rights under the Fourteenth Amendment. We
affirm.
Facts and Procedural History
[2] On July 30, 2012, Smoots pleaded guilty to robbery, as a Class C felony.
Pursuant to a plea agreement, the trial court sentenced Smoots as follows: five
years at the Department of Correction (“DOC”); one year in community
corrections; and two years on probation. On December 16, 2014, after having
completed the executed portion of his sentence, Smoots began his one-year
work release sentence at the Madison County Work Release Center (“Work
Release Center”). Within two months of being on work release, Smoots had
repeated incidents of violating work release rules. On February 13, 2015, the
State filed a petition to terminate Smoots from Work Release due to Smoots
leaving work without authorization, and the trial court issued a warrant for his
arrest. That same day, Smoots reported to officers at the Work Release Center
that he had vomited blood, and an officer transported Smoots to a local
hospital. Smoots did not return to the Work Release Center upon his discharge
from the hospital.
[3] On May 7, 2015, Officers Dustin Armstrong and Joe Garrett of the Anderson
City Police Department questioned Smoots during a traffic stop and noticed an
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odor of marijuana coming from Smoots’ vehicle. Smoots gave the officers a
fake name, and, when the officers learned of Smoots’ true identity, Smoots fled.
Officers eventually found Smoots and took him into custody without further
incident.
[4] On May 13, the State filed a second petition to terminate Smoots from the
Work Release program based on Smoots’ failure to do the following: return to
lawful detention despite notice provided on February 13 and 18; failure to
return to lawful detention, as a Level 6 felony; escape, as a Level 5 felony; false
informing, as a Class A misdemeanor; and possession of marijuana, as a Class
A misdemeanor.
[5] Following a hearing on the State’s petition to terminate Smoots from Work
Release, the trial court found that Smoots had failed to successfully complete
his work release and had failed to return to lawful detention. The trial court
sentenced Smoots to three years executed in the DOC with 126 days credit
time. This appeal ensued.
Discussion and Decision
[6] Smoots contends that he was denied due process when the trial court denied
him the ability to present mitigating evidence prior to the revocation of his
probation. While distinguished from criminal trials, probation revocation
hearings are regulated by the Due Process Clause of the Fourteenth
Amendment. U.S. Const. amend. XIV; Medicus v. State, 664 N.E.2d 1163, 1164
(Ind. 1996). The minimum requirements of due process provided to a
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probationer at a revocation hearing include: “(a) written notice of the claimed
violations of probation; (b) disclosure of the evidence against him; (c) an
opportunity to be heard and present evidence; (d) the right to confront and
cross-examine adverse witnesses; and (e) a neutral and detached hearing body.”
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
[7] For purposes of appellate review, we review a hearing on a petition to revoke a
placement in a community corrections program the same way we review a
ruling on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind.
1999). “A defendant is not entitled to serve a sentence in either probation or a
community corrections program. Rather, placement in either is a ‘matter of
grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting
Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)).
[8] Smoots’ only argument on appeal is that the trial court denied him due process
when the court allegedly refused to allow him an opportunity to present
mitigating evidence to prove that the violations did “not warrant revocation.”
Appellant’s Br. at 9. However, Smoots had a full evidentiary hearing, was
represented by counsel, and was given the opportunity to present evidence.
After the State rested its case, Smoots’ defense counsel, rather than presenting
evidence, went straight into closing argument. Nothing in the transcript shows
that defense counsel attempted to present mitigating evidence but was denied
such an opportunity by the trial court. Because the trial court afforded Smoots
an evidentiary hearing, including an opportunity to present mitigating evidence
at that hearing, he has not shown that the trial court denied him his right to due
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process. See, e.g., Vernon v. State, 903 N.E.2d 533, 537 (Ind. Ct. App. 2009)
(holding that the trial court did not violate the defendant’s due process rights
because the defendant was afforded an evidentiary hearing and, thus, was
provided an opportunity to present mitigating evidence).
[9] Moreover, Smoots does not explain on appeal what mitigating evidence he
would have presented to the trial court to prove that revocation of his probation
was not warranted. “[A] bald assertion of prejudice is insufficient to overcome
the burden placed upon the complaining party to affirmatively show prejudice.
This court will not presume prejudice.” Plan-Tec, Inc. v. Wiggins, 443 N.E.2d
1212, 1233 (Ind. Ct. App. 1983). Thus, even if the trial court had denied him
the opportunity to present evidence, which it did not, Smoots has not shown
that the alleged error prejudiced him. The trial court did not err when it
revoked Smoots’ probation.1
[10] Affirmed.
Riley, J., and May, J., concur.
1
Smoots does not challenge the sentence the trial court imposed upon revoking his probation.
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