Scott W. Bishop v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 22 2012, 9:14 am
court except for the purpose of
establishing the defense of res judicata, CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID W. STONE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SCOTT W. BISHOP, )
)
Appellant-Defendant, )
)
vs. ) Nos. 48A02-1108-CR-797
) 48A05-1108-CR-441
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause Nos. 48C01-9112-CD-165
48C01-9903-DF-64
48C01-9903-DF-65
February 22, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Scott W. Bishop appeals the revocation of his probation
following a hearing during which the State presented evidence that Bishop committed
four criminal acts while on probation. Specifically, Bishop contends that the trial court
erred when it admitted hearsay evidence in a police officer‟s probable cause affidavit at
the hearing, and without the probable cause affidavit, he argues the evidence is
insufficient to support the trial court‟s finding that he committed the offense of resisting
law enforcement. Additionally, Bishop contends that the trial court erred when it ordered
that he serve his suspended sentences for the prior convictions for which he was on
probation. Concluding that the trial court properly revoked Bishop‟s probation, we
affirm.
FACTS
In December 1992, Bishop pleaded guilty to three counts of robbery, a class B
felony, one count of resisting law enforcement, a class D felony, and one count of
receiving stolen auto parts, a class D felony, under Cause number 48C01-9112-CF-165
(“CF-165”). For each robbery count, the trial court sentenced Bishop to twenty years in
the Indiana Department of Correction (DOC), with ten years suspended, and ordered all
three sentences be served concurrently. For each of the two remaining counts, the trial
court sentenced Bishop to one year in the DOC and ordered that he serve those sentences
concurrent with the other but consecutive to the sentences for robbery. On March 3,
1999, the trial court found that Bishop violated the terms of his probation by committing
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the offense of criminal confinement, a class D felony, and ordered him to serve three
years of his previously suspended sentence.
On March 17, 1999, the State charged Bishop under Cause numbers 48C01-9903-
DF-064 (“DF-064”) and 48C01-9903-DF-065 (“DF-065”). In DF-064, Bishop pleaded
guilty to criminal confinement, and the trial court sentenced him to three years suspended
to probation, to run consecutively to the sentences from three prior convictions. In DF-
065, Bishop pleaded guilty to two counts of theft and auto theft. The trial court sentenced
him to three years on each count, all suspended to probation, to run concurrently with
each other, and consecutive to the sentence in three other cause numbers, including DF-
064.
On June 5, 2011, Jamie Tomlinson was drinking vodka with Bishop at his
apartment. At some point, Bishop attempted to have sex with Tomlinson, but she
refused, went to the restroom, and locked the door. While Tomlinson was in the
restroom, Bishop “busted the door open” and threw her to the ground. Tr. p. 9. Bishop
twice picked Tomlinson up by her hair, tossing her out of the bathroom into a closet and
then against a door frame. Thereafter, Bishop grabbed Tomlinson by the throat and threw
her onto a couch, where he attempted to remove her pants. Although Tomlinson pleaded
with Bishop to stop, he refused, removed his belt, and choked her with the belt. Bishop
then strangled Tomlinson until she lost consciousness.
Anderson Police Department Officer Amber Miller responded to the report of a
woman being battered at Bishop‟s apartment. Officer Miller arrived at the apartment and
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heard a woman say, “Stop choking me, I can‟t breathe.” State‟s Ex. 1. Officer Miller
knocked on the door, and when Bishop opened the door, he was holding a steak knife.
She ordered him to drop the knife, but he placed it in his back pant pocket. Miller
ordered Bishop to show his hands, but he refused. Officer Miller was able to place a
handcuff on Bishop‟s right wrist and told him to show his left hand. He refused, but she
was able to take possession of the knife. She again ordered him to show his left hand and
Bishop “forcibly pulled away.” State‟s Ex. 1. Another officer struck Bishop in the
abdomen and Officer Miller was able to completely handcuff Bishop. Tomlinson
regained consciousness after the police arrived. Officer Miller observed Tomlinson
holding handfuls of her hair.
On June 5, 2011, the State charged Bishop with criminal confinement, a class D
felony; strangulation, a class D felony; battery committed by means of a deadly weapon
or resulting in serious bodily injury, a class C felony, and resisting law enforcement, a
class A misdemeanor. On June 10, 2011, the State filed a notice of probation violation.
On July 18, 2011, the trial court held an evidentiary hearing, at which Tomlinson
testified about Bishop‟s actions prior to her passing out and her injuries. Officer Miller
did not attend the hearing and, over Bishop‟s objections, the trial court admitted into
evidence Officer Miller‟s probable cause affidavit. The probable cause affidavit
contained the only evidence admitted at trial to support the trial court‟s finding that
Bishop committed the offense of resisting law enforcement.
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Following the hearing, the trial court found Bishop in violation of the terms of his
probation. In CF-165, it ordered Bishop to serve seven years of his previously suspended
sentence in the DOC. In DF-064 and DF-065, Bishop was ordered to serve three years of
his previously suspended sentence in the DOC, to run concurrently with each other and
consecutive to his sentence in CF-165, for an aggregate term of ten years. Bishop now
appeals.
DISCUSSION AND DECISION1
I. Admission of Probable Cause Affidavit and Sufficiency of Probation Revocation
Bishop appears to argue that the evidence is insufficient to support the revocation
of his probation. Bishop claims that the trial court erred when it admitted into evidence
Officer Miller‟s probable cause affidavit into evidence at the revocation hearing because
it was hearsay and lacks sufficient indicia of reliability. Specifically, Bishop challenges
the trial court‟s conclusion that the probable cause affidavit, signed under a penalty of
perjury, is sufficiently reliable.
Decisions regarding the admission of evidence in probation revocation hearings
are reviewed for an abuse of discretion. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct.
App. 2010). An abuse of discretion occurs when the trial court‟s decision is clearly
against the logic and effect of the facts and circumstances before it. Id.1
Although the State argues that Cause number 48A05-1108-CR-441 (“CR-441”) is not properly before
this court, our motions panel granted Bishop‟s motion to consolidate 48A02-1108-CR-797 (“CR-797”)
and CR-441 under CR-797.
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Probation revocation deprives a probationer only of a conditional liberty, and he is
not entitled to the full array of due process protections afforded a defendant at a criminal
trial. Mateyko v. State, 901 N.E.2d 554, 557 (Ind. Ct. App. 2009). Indeed, the Indiana
Rules of Evidence, including the rules against hearsay, do not apply in probation
revocation hearings. See Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999); Ind. Evidence.
Rule 101(c)(2). Instead, courts in probation revocation hearings may consider “any
relevant evidence bearing some substantial indicia of reliability. This includes reliable
hearsay.” Cox, 706 N.E.2d at 551. And while the due process principles applicable in
probation revocation hearings afford the probationer the right to confront and cross-
examine adverse witnesses, this right is narrower than in a criminal trial. Figures, 920
N.E.2d at 271. “For these reasons, the general rule is that hearsay evidence may be
admitted without violating a probationer‟s right to confrontation if the trial court finds the
hearsay is „substantially trustworthy.‟” Id. (quoting Reyes v. State, 868 N.E.2d 438, 442
(Ind. 2007)).
Contrary to Bishop‟s assertions, the United States Supreme Court and our
Supreme Court have determined that affidavits are a “type of material that would be
appropriate in a revocation even if not a criminal trial.” Reyes, 868 N.E.2d at 440-41
Although decided before Reyes, a panel of this court held in Whatley v. State that an
affidavit prepared and signed under oath by an officer bears “sufficient indicia of
reliability.” 847 N.E. 2d 1007, 1009 (Ind. Ct. App. 2006).
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Here, the trial court stated during the hearing, “This documents [sic] produced and
is signed by Officer Amber Miller. It‟s uh, under penalty of perjury . . . . The court will
admit State‟s exhibit one (1) over objection.” Tr. p 24-5. Our review of the affidavit
confirms the trial court‟s observations of the affidavit. State‟s Ex. 1. Therefore, because
the affidavit was produced and signed under oath by Officer Miller, it bears sufficient
indicia of reliability, and the trial court did not err when it admitted the affidavit into
evidence.
Having concluded that the trial court did not err when it admitted the probable
cause affidavit in support of the resisting arrest charge, Bishop‟s insufficiency argument
fails. See Wilson v. State, 708 N.E.2d, 32, 34 (Ind. Ct. App. 1999) (holding that “[t]he
violation of a single condition of probation is sufficient to revoke probation.”) Moreover,
Bishop fails to challenge the trial court‟s three other findings, that there is a reasonable
probability the Bishop committed criminal confinement, strangulation, and battery by
means of a deadly weapon or resulting in serious bodily injury. Therefore, the trial court
did not err in revoking Bishop‟s probation.
II. Sentence
Bishop next contends that the trial court erred when it ordered him, upon the
revocation of his probation, to serve his previously suspended sentences in DF-165 and
DF-64, and DF-65. In particular, Bishop contends “[his] request for work release would
give him the structure he needed to successfully transition back into society.”
Appellant‟s Br. p. 9.
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We review a trial court‟s sentencing decision in a probation revocation proceeding
for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005).
An abuse of discretion occurs if the decision is against the logic and effect of the facts
and circumstances before the court. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.
2005). If the trial court finds that the person violated a condition of probation, it may
order the execution of all or part of the sentence that was suspended at the time of initial
sentencing. Ind. Code § 35-38-2-3(g); Stephens v. State, 818 N.E.2d 936, 942 (Ind.
2004).
As noted above, the trial court found that there is a reasonable probability that
Bishop committed several crimes in violation of his probation, and we are unconvinced
by Bishop‟s bald assertion that the trial court should have placed him on work release.
Therefore, the trial court did not abuse its discretion when it ordered Bishop to serve the
suspended sentences.
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.
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