Shane J. Johnson v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
FILED
May 25 2012, 9:16 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
SHANE J. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1107-CR-350
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael R. Rader, Judge
Cause Nos. 84D05-1006-FD-2121, 84D05-1006-FD-1923, 84D05-1005-FD-1552
May 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Shane Johnson appeals the revocation of his probation. He presents three issues for
our review:
1. Whether the trial court violated Johnson’s due process rights;
2. Whether the trial court abused its discretion when it revoked Johnson’s work
release and probation; and
3. Whether the court’s statement of Johnson’s remaining sentence and credit time
is ambiguous.
We affirm in part and remand.
FACTS AND PROCEDURAL HISTORY
On January 7, 2011, in a proceeding that resolved three separate causes, Johnson pled
guilty to Class D felony operating a vehicle while intoxicated1 and two counts of Class D
felony theft.2 The trial court imposed the following sentences: two years executed on work
release and one year suspended to probation for Class D felony operating a vehicle while
intoxicated; two years executed on work release and one year suspended to probation for one
of the Class D felony theft counts; and two years executed on work release with one year
suspended to probation for the other Class D felony theft count. The court ordered the first
two sentences to run concurrently, with the third sentence running consecutively to the other
two. Thus, Johnson’s aggregate sentence was four years executed on work release and two
years suspended to probation. The trial court gave Johnson credit for 172 actual days served
1
Ind. Code § 9-30-5-3.
2
Ind. Code § 35-43-4-2.
2
in jail awaiting trial and 80 days served on work release as a condition of his pre-trial release.
On April 20, 2011, the State filed a petition to revoke Johnson’s probation. On June
7, the State filed an amended petition to revoke Johnson’s probation, alleging he twice tested
positive for drugs and on five separate occasions was unaccounted for from his work release
facility.
The trial court held a hearing on June 28 and revoked Johnson’s probation. The trial
court stated Johnson was to serve a “six (6) year sentence [in the Indiana Department of
Correction] less any credit time.” (Tr. at 13.)
DISCUSSION AND DECISION
1. Due Process
As a probation revocation deprives a probationer of only his conditional liberty, he is
not entitled to the full due process rights afforded to him during a criminal proceeding. Cox
v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). The minimum requirements of due
process in a probation revocation proceeding are:
(a) written notice of the claimed violations of probation;
(b) disclosure to the probationer of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary
evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing confrontation);
(e) a neutral and detached hearing body; and
(f) a written statement by the factfinder as to the evidence relied on and
reasons for revoking probation.
Id. Johnson asserts the trial court did not allow him “to present evidence in his own defense
or otherwise be heard.” (Br. of Appellant at 13.) However, the record indicates Johnson
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cross-examined the State’s witness and did not indicate he had evidence to present on his
behalf. The court permitted Johnson to speak on his behalf, however, it stated: “Well he has
no right of allocution at a revocation hearing. If you want to speak, you go right ahead. I’m
not going to change my mind. That’s your sentence.” (Tr. at 13.)
Johnson did, in fact, have a right to speak at his probation hearing. See Cox, 850
N.E.2d at 488 (probationer has right to speak at revocation hearing). However, the trial
court’s erroneous statement indicating the contrary was harmless because Johnson was
permitted to speak, and he gave a short explanation for his absence from the work release
program. We do not know what consideration, if any, the trial court gave to his statement,
and thus Johnson’s argument is an invitation for us to reweigh the evidence, which we may
not do. See King v. State, 642 N.E.2d 1389, 1393 (Ind. Ct. App. 1994) (appellate court does
not reweigh evidence or judge credibility of witnesses).
2. Revocation of Probation
Probation revocation proceedings are civil in nature, and the State must prove a
violation of the conditions of probation by a preponderance of the evidence. Ind. Code § 35-
38-2-3(e). The decision to revoke probation is reviewed for an abuse of discretion. Sanders
v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion
occurs when the trial court’s decision is against the logic and effect of the facts and
circumstances before it. Id. When reviewing the sufficiency of evidence supporting a
probation revocation, we neither reweigh the evidence nor judge the credibility of witnesses,
but look at the evidence most favorable to the State. King, 642 N.E.2d at 1393. If there is
4
substantial evidence of probative value to support the trial court’s decision that the
probationer violated probation, revocation is appropriate. Id.Johnson does not dispute he violated his probation by twice testing positive for drugs
and by having five unauthorized absences from his work release facility. Instead, he argues
the trial court abused its discretion when it did not accept the agreement he reached with the
State prior to the probation revocation hearing. However, the court was not required to
accept such an agreement. See Isaac v. State, 605 N.E.2d 144, 146 (Ind. 1992), (trial court is
authorized to refuse probation revocation agreement entered between parties), cert. denied,
508 U.S. 922 (1993).3
The trial court acted within its discretion when it ordered Johnson to serve the
remainder of his suspended sentences considering Johnson has a lengthy criminal past as
both a juvenile and adult and had previously violated probation for another offense.
Therefore, we cannot hold it abused that discretion. See Ind. Code § 35-38-2-3(g)(3) (trial
court may revoke entire suspended sentence when it finds probationer violated probation).
3. Sentencing Statement
When it is unclear from the record whether the written order or the oral revocation
statement is correct, we may credit the statement that accurately pronounces the terms of
revocation intended by the trial court, or we may remand for reconsideration of the
3
In support of his contention the trial court was bound by the agreement he made with the State regarding the
revocation of his probation, Johnson cites Watson v. State, 833 N.E.2d 497, 500 (Ind. Ct. App. 2005).
However, Watson is inapposite because, unlike in the instant case, the trial court signed a previous order in
which the parties agreed Watson’s probation would not be revoked if he complied with the stipulations of the
probation modification agreement. Id.5
revocation terms. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (when written and
oral sentencing statements are not the same, we may credit the statement that accurately
pronounces the sentence intended by the trial court or we may remand for resentencing). We
may also remand for correction of clerical errors if the trial court’s intent is unambiguous.
See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010 (may remand for correction of
clerical errors in sentencing statement if trial court’s intent is unambiguous) ), reh’g denied.
During the probation revocation hearing, the trial court ordered Johnson to serve “a
six (6) year sentence less any credit time,” (Tr. at 13), which represents an aggregate of the
remainder of the sentences on the three convictions for which he was on probation: “Show
the sentence is three (3) years in [cause number ending in] 1552 and in FD 1923 you are
sentenced to the balance of three years and then consecutive to that, the balance of the
sentence of three (3) years in FD 2121.” (Id.)
On June 28, 2011, the trial court entered an order revoking Johnson’s probation and
stated, regarding the amount of time Johnson had to serve following revocation:
In Cause No. 1006 FD 2121, the Court revokes the Defendant’s
suspended sentence for 2 years at the Indiana Department of Correction. The
Defendant will receive no jail time credit in this cause. Upon release from
custody, the Defendant will be placed on informal probation for 1 year. The
sentence is to run consecutive to the sentence [sic] imposed in 1006 FD 1923
and 1005 FD 1552.
In Cause No. 1006 FD 1923, the Defendant’s suspended sentence is
revoked for 3 years at the Indiana Department of Correction. The Defendant
will receive no jail time credit in this cause. This sentence shall run concurrent
to the sentence imposed in 1005 FD 1552 and consecutive to 1006 DF [sic]
2121.
In Cause No. 1005 FD 1552, the Defendant’s suspended sentence is
revoked for 3 years at the Indiana Department of Correction with credit for 172
actual days served in the Vigo County Jail and 80 days served on Work
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Release as a condition of pre-trial release. Further, he will receive credit for
152 actual days on Work Release as a direct commitment and 20 actual days
served in the Vigo County Jail. This sentence is to run concurrent to 1006 FD
1923 and consecutive to 1006 FD 2121.
(App. at 22) (emphasis in original). On August 10, the trial court entered a Nunc Pro Tunc
order which stated:
The Court now amends the prior order of June 28, 2011, as follows:
In Cause No. 1006 FD 2121, the Court revokes the Defendant’s
suspended sentence for 2 years at the Indiana Department of Correction. The
Defendant will receive no jail time credit in this cause. The sentence is to run
consecutive to the sentence [sic] imposed in 1006 FD 1923 and 1005 FD 1552.
In Cause No. 1006 FD 1923, the Defendant’s suspended sentence is
revoked for 3 years at the Indiana Department of Correction with credit for 172
actual days served in the Vigo County Jail and 80 days served on Work
Release as a condition of pre-trial release. Further, he will receive credit for
152 actual days on Work Release as a direct commitment and 20 actual days
served in the Vigo County Jail. This sentence shall run concurrent to the
sentence imposed in 1005 FD 1552 and consecutive to 1006 DF [sic] 2121.
The balance of the prior order of June 28, 2011, shall remain in full
force and effect.
(Id. at 24) (emphasis in original). On August 30, the trial court entered a second Nunc Pro
Tunc order, which stated:
The Court now amends the prior order of August 20, 2011, as follows:
In Cause No. 1006 FD 2121, the court revokes the Defendant’s direct
placement in Work Release for 2 years at the Indiana Department of
Correction and his probation for 1 year. The Defendant will receive no jail
time credit in this cause. The sentence is to run consecutive to the sentence
[sic] imposed in 1006 FD 1923 and 1005 FD 1552.
In Cause No. 1006 FD 1923, the court revokes the Defendant’s direct
placement in Work Release for 226 days at the Indiana Department of
Correction and his probation for 1 year with credit for 152 actual days served
on pre-trial Work Release and 20 actual days served in the Vigo County Jail.
This sentence shall run concurrent to the sentence imposed in 1005 FD 1552
and consecutive to 1006 FD 2121.
In Cause No. 1005 FD 1552, the court revokes the Defendant’s direct
7
placement in Work Release for 226 days and his probation for 1 year to be
served in the Indiana Department of Correction. The Defendant is to receive
credit for 152 days on Work Release and 20 days served in the Vigo County
Jail. The sentence is to run concurrent to the sentence imposed in 1006 FD
1923 and consecutive to 1006 FD 2121.
The balance of the prior order of August 20, 2011, shall remain in full
force and effect.
(Id. at 25) (emphasis in original).
Johnson argues the sentencing orders are “inconsistent and confusing and, at least one
of those sentencing orders reflects a sentence beyond the maximum statutory penalty.” (Br.
of Appellant at 19.) The State concedes the orders are “ambiguous and contain certain
clerical errors.” (Br. of Appellee at 9.) We agree the orders, taken together or separately, are
confusing. We remand to the trial court for a detailed probation revocation order which
correctly states Johnson’s original sentence, time served and credit received, and time
ordered served under the revocation for each cause number. In addition, the new order shall
indicate the aggregate period of time Johnson is to serve incarcerated under the revocation, as
to clarify any difficulties in interpretation of the separate parts of the order.
CONCLUSION
Even though the trial court erred when it told Johnson he did not have a right to speak
during his probation revocation hearing, the error was harmless because Johnson was given a
chance to speak and any argument he makes regarding whether the trial court gave credit to
that statement is an invitation to reweigh the evidence, which we may not do. Additionally,
the trial court did not abuse its discretion when it revoked Johnson’s probation under terms
different from those to which Johnson and the State agreed, as the trial court was not
8
obligated to accept any agreement between the parties and the terms of revocation were
statutorily appropriate.
However, the trial court’s revocation orders and the oral statement of revocation at the
probation revocation hearing are ambiguous and confusing. Accordingly, we remand to the
trial court for a more specific statement of the terms of Johnson’s probation revocation
consistent with the recommendations of this opinion.
Affirmed in part, and remanded.
CRONE, J., concurs.
ROBB, C.J., concurring with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
SHANE J. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1107-CR-350
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
ROBB, Chief Judge, concurring
I respectfully concur but write separately to clarify my opinion regarding the due
process issue which Johnson raises.
The trial court stated: “If you want to speak, you go right ahead. I’m not going to
change my mind. That’s your sentence.” Tr. at 13. While the majority concludes that it does
not know what consideration, if any, the trial court gave to Johnson’s subsequent statement, I
would take the trial court’s statement at face value – it did not consider Johnson’s statement
at all. A right to speak inherently includes the right to have a judge listen when one speaks,
and for that reason I believe it was improper for the trial court to state that it is not going to
10
listen. The trial court’s statements are not evidence, and to accept them at face value is not
reweighing evidence. Nevertheless, because Johnson was able to, and did, cross-examine the
State’s witness and did not indicate he had evidence to present on his behalf in attempt to
explain and mitigate his violation, I concur in the result which the majority orders.
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