Pausides Alayo v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 17 2018, 8:06 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pausides Alayo, May 17, 2018
Appellant-Defendant, Court of Appeals Case No.
09A02-1712-CR-2800
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff Maughmer, Judge
Trial Court Cause No.
09D02-1404-FB-20
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 1 of 6
[1] Pausides Alayo appeals following the revocation of his probation. On appeal,
Alayo argues that the State’s evidence is insufficient to support the revocation
of his probation.
[2] We affirm.
Facts & Procedural History
[3] Pursuant to a plea agreement, Alayo pled guilty to Class D felony strangulation
and the State agreed to dismiss four other charges. On June 2, 2014, the trial
court sentenced Alayo to 910 days, with 776 days suspended to probation. In
addition to the general terms of probation, Alayo was also required to enroll in
and successfully complete a domestic violence program “at least thirty days
prior to [his] calculated termination date,” pay a number of costs and fees, and
obtain a mental health evaluation and follow any treatment recommendation.
Appellant’s Appendix Vol. II at 55. In October 2015, the State filed a petition
alleging Alayo violated his probation after he submitted to a drug screen that
was positive for methamphetamine. On November 24, 2015, Alayo admitted
to violating his probation and the court ordered that he serve 120 days of his
suspended sentence.
[4] On June 27, 2016, the State filed a second petition alleging Alayo violated his
probation by (1) failing to complete a domestic violence program, (2) failing to
pay probation user fees, (3) failing to pay for drug screens, (4) failing to pay
court costs, (5) failing to pay a public defender fee, and (6) failing to pay the
drug and alcohol program fee. At an initial hearing on July 15, 2016, the court
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 2 of 6
emphasized to Alayo that he needed “to start paying on this stuff.” Transcript at
6.
[5] At a hearing on January 3, 2017, the State informed the court that Alayo had
“completed that domestic violence program” and that he had been paying, but
“he still owes fees.” Id. at 9. The State requested that Alayo’s probation be
“terminated unsuccessfully and for a judgment to be entered” for unpaid fees.
Id. When questioned by the court about his ability to pay the fines and costs,
Alayo stated that he worked painting houses and fixing pipes. Alayo indicated
to the court that he could pay his costs and fees in “five months.” Id. at 11.
The court informed Alayo of the amount he owed and continued the matter to
June 27, 2017.
[6] On August 8, 2017, the State filed a third probation violation, alleging that
Alayo violated his probation by committing the offense of battery resulting in
bodily injury. The court held a fact-finding hearing on the alleged probation
violations on November 6, 2017. During the hearing, Terry Haney1 with the
Cass County Probation Department testified that the probation fees had been
retired, but there was no confirmation in the file that Alayo had completed the
domestic violence program or whether he had paid the fees associated with the
drug screens. The court took judicial notice of its own records indicating that
Alayo had not paid court costs or the public defender fee. With regard to the
1
Haney was not the probation officer who had directly worked with Alayo.
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 3 of 6
commission of a new criminal offense, Haney testified that Alayo pled guilty in
the Knox City Court to misdemeanor battery resulting in bodily injury and was
sentenced. At the conclusion of the evidence, the court found that Alayo had
violated his probation by (1) failing to complete the domestic violence program;
(2) failing to pay court costs; (3) failing to pay public defender fees; (4) failing to
pay the drug and alcohol program fee; and (5) committing a new criminal
offense. The court ordered that Alayo serve 540 days of his suspended sentence
in the Department of Correction, terminated probation, and entered a judgment
against him for $468. Alayo now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
[7] Alayo argues that the State presented insufficient evidence to support the
revocation of his probation. A probation revocation hearing is civil in nature,
and the alleged violation must be proven by the State by a preponderance of the
evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.
denied. When reviewing a claim of insufficient evidence to support a trial
court’s decision to revoke probation, we consider only the evidence most
favorable to the judgment, and we neither reweigh the evidence nor judge the
credibility of witnesses. Id. Revocation is appropriate if there is substantial
evidence of probative value to support the trial court’s conclusion that the
probationer has violated the terms of probation. Lightcap v. State, 863 N.E.2d
907, 911 (Ind. Ct. App. 2007). It is well settled that the violation of a single
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 4 of 6
condition of probation is sufficient to support revocation. Gosha v. State, 873
N.E.2d 660, 663 (Ind. Ct. App. 2007).
[8] Alayo argues, and the State concedes, that failure to pay a public defender fee
cannot, as a matter of law, be grounds for the revocation of probation. See Ind.
Code § 35-38-2-3(n). We further note that while Haney testified at the
November 6, 2017 hearing that there was nothing in Alayo’s file indicating he
had completed the domestic violence program, the State had informed the court
at the January 3, 2017 hearing, based on information received from Alayo’s
probation officer, that he had completed such. Despite the court’s erroneous
reliance on these two findings as a basis for revocation of Alayo’s probation, the
court’s revocation of probation can still be upheld.
[9] With regard to Alayo’s failure to pay fines and costs (including fees) required as
a condition of probation, such is a proper basis for revocation of probation if it
is shown that the person recklessly, knowingly, or intentionally failed to pay
and so long as it is not the sole basis for revocation. See I.C. § 35-38-2-3(g), (m).
The State established that Alayo had been informed of his obligation to pay
fines and costs and the trial court even continued the matter of probation
revocation for over five months to provide Alayo with an opportunity to pay
such. Although Alayo paid his probation fees, he did not pay other fines and
costs of which he had knowledge. We also note that the court did not base the
revocation of Alayo’s probation solely on the fact that Alayo did not pay such,
but also found that Alayo had committed a new criminal offense.
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 5 of 6
[10] To that end, we disagree with Alayo that there was insufficient evidence to
support the court’s finding that he had committed another criminal offense.
Haney testified that Alayo had pled guilty to battery resulting in bodily injury
and was sentenced to a suspended term. Alayo did not object to Haney’s
testimony in this regard. And, although the trial court sustained Alayo’s
objection to the admission of an uncertified copy of the chronological case
summary for the battery case, Alayo did not object when the court took judicial
notice of such record. Alayo’s attorney also referenced the sentence handed
down by the Knox City Court in suggesting to the court a proper sanction for
the probation violation. Based on the foregoing, we conclude that the State
presented sufficient evidence to prove by a preponderance of the evidence that
Alayo committed a new criminal offense while on probation.
[11] Even if the trial court erred in considering his failure to pay fines and costs,
Alayo’s commission of a new criminal offense is sufficient by itself to support
the trial court’s revocation of his probation. Indeed, the violent nature of the
new offense is similar to the violent nature of the original offense for which
Alayo was on probation. The trial court did not abuse its discretion in revoking
Alayo’s probation and ordering that he serve 540 days of his previously
suspended sentence.
[12] Judgment affirmed.
Najam, J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018 Page 6 of 6