Clayton Frazier 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 Jul 13 2020, 8:39 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clayton Frazier, July 13, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-255
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Mark Dudley, Judge
Trial Court Cause No.
48C06-1710-F5-2565
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020 Page 1 of 5
Case Summary
[1] Clayton Frazier appeals the trial court’s order finding that he violated probation
and requiring him to serve three years in the Department of Correction. We
affirm.
Facts and Procedural History
[2] In September 2016, J.B., the mother of Frazier’s child, obtained a protective
order prohibiting Frazier from contacting her for a period of two years. The
next year, Frazier violated the order and pled guilty to two counts of invasion of
privacy (one Level 6 felony and one Class A misdemeanor) in Case No. 48C06-
1703-F5-779 (“F5-779”). While Frazier was awaiting sentencing in F5-779, he
broke into a store and stole a gun. As a result, the State filed the charges in this
case: Level 4 felony unlawful possession of a firearm by a serious violent felon,
Level 5 felony burglary, and Level 6 felony theft of a firearm. Frazier pled
guilty to those charges in April 2018. On May 23, 2018, the trial court held a
joint sentencing hearing for this case and F5-779. In this case, the court
imposed a sentence of nine years, with three years to serve in the Department of
Correction and six years suspended to probation. In F5-779, the court ordered
Frazier to serve two years at the Madison County Work Release Center,
consecutive to the sentence in this case, and to have no contact with J.B.
[3] Between May 2018 and June 2019, Frazier sent numerous letters to J.B.
Alleging that the letters violated the no-contact order in F5-779, the State filed
Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020 Page 2 of 5
new felony stalking and invasion-of-privacy charges against Frazier, see Case
No. 48C06-1909-F5-2227, and also filed a Notice of Violation of Suspended
Sentence in this case. The new criminal case is still pending (it is currently
scheduled for trial in January 2021), but the trial court held the final hearing in
the probation matter in January of this year. The court found that Frazier
violated probation by committing invasion of privacy and ordered him to serve
three of the six suspended years in the Department of Correction.
[4] Frazier now appeals.
Discussion and Decision
[5] Frazier frames his appeal as raising one issue: “Was the sanction of revocation
to DOC an abuse of discretion[?]” Appellant’s Br. p. 4. However, the body of
his brief seems to include two different arguments. First, Frazier contends that
the letters to J.B. were “benign” and that therefore the trial court should have
either found no violation of the no-contact order or imposed no probation
sanction. Id. at 7. Alternatively, he argues that the court “failed to recognize it
had discretion” to choose not to impose a sanction. Id. Both arguments are
without merit.1
1
Frazier also asserts that the trial court interpreted the no-contact order in F5-779 as prohibiting him from
having contact with his child and that such a prohibition is “improper.” Appellant’s Br. p. 7. He does not cite
anything in the record to support his claim. And, in any event, the letters at issue were written and sent to
J.B., not to her and Frazier’s child. See Exs. 2-9.
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[6] In support of his argument that the letters were “benign,” Frazier points out
that they “contained no threats against J.B. or her children,” that they
“informed” J.B. that Frazier was filing a paternity action, that Frazier sent J.B.
“negative tests results for HIV he had received,” that Frazier “requested
information about their child and pictures of it and [J.B.],” and that “[h]e also
apologized for his past action.” Id. The State disputes Frazier’s characterization
of the letters, asserting that they “included a number of claims or phrases that
could be viewed as frightening.” Appellee’s Br. p. 10. But the content of the
letters is ultimately irrelevant to our review. As the trial court explained, “no
contact” means just that—no contact. See Tr. pp. 56, 57. Sending the letters was
an obvious violation of the no-contact order, was criminal, and was sufficient to
warrant a probation sanction. See Wilburn v. State, 671 N.E.2d 143, 147 (Ind. Ct.
App. 1996) (“The trial court may revoke probation for the mere commission of
a criminal offense during the probationary period which the State has properly
established by a preponderance of the evidence.”), trans. denied.
[7] We also reject Frazier’s alternative argument that the trial court “failed to
recognize” that it had the option of imposing no sanction for the probation
violation. See Sullivan v. State, 56 N.E.3d 1157, 1160 (Ind. Ct. App. 2016)
(explaining that the trial court must determine if a probation violation
“warrants revocation of the probation”). He cites the following statement the
trial court made in imposing the sanction:
Um, no contacts are that. They’re no contacts. It’s not no
contact, but if it’s uh uh innocuous contact, well we won’t care
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about, or if it’s a contact and it’s a medium threat, well maybe
we’ll worry about it. If it’s a contact with a serious threat, no now
we’re gonna worry about it. No, it’s a bright line. No contact is
no contact and that’s how I approach it and he clearly violated
no contact multiple times. And again, I don’t really care if it’s
innocuous, medium, or s- serious, it’s a contact and he he knows
better. He’s- that’s why he was sentenced in [F5-779]. And so,
the court’s sanction is to revoke three (3) years to the Department
of Corrections of the six (6).
Tr. pp. 56-57. Nothing in that statement indicates that the trial court believed it
was required to impose a sanction. Rather, the court was simply explaining—
correctly—that the letters violated the no-contact order regardless of their
content. In short, it is clear to us that the court imposed a sanction because it
concluded that a sanction was appropriate, not because it thought it had no
other choice.2
[8] Affirmed.
May, J., and Robb, J., concur.
2
Frazier does not argue that three years is an excessive sanction for his probation violation. He argues only
that the trial court should not have imposed any sanction at all. Regardless, given Frazier’s brazen
commission of a new criminal offense shortly after being sentenced, the trial court did not abuse its discretion
by ordering him to serve half of his suspended time. See Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App.
2005) (“[W]e review a trial court’s decision to revoke probation and a trial court’s sentencing decision in a
probation revocation proceeding for an abuse of discretion.”), trans. denied.
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