Jason Schapker v. State of Indiana ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jan 31 2012, 9:17 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
court of appeals and
case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM VAN DER POL, JR. GREGORY F. ZOELLER
Martinsville, Indiana Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON SCHAPKER, )
)
Appellant-Defendant, )
)
vs. ) No. 55A01-1106-CR-258
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MORGAN SUPERIOR COURT
The Honorable Jane Spencer Craney, Judge
Cause No. 55D03-0508-FB-198
January 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Jason Schapker appeals the revocation of his probation.
We affirm.
ISSUE
Schapker presents one issue, which we restate as: whether the trial court properly
revoked Schapker’s probation.
FACTS AND PROCEDURAL HISTORY
Schapker pleaded guilty to Class B felony child molesting on February 2, 2006.
On April 10, 2006, the trial court sentenced Schapker to twelve years suspended to eight
years and four years of probation. Schapker filed a direct appeal, and this Court affirmed
his sentence in a memorandum decision. See Schapker v. State, No. 55A05-0606-CR-
338 (Ind. Ct. App. Feb. 9, 2007).
On August 27, 2009, the State filed a petition to revoke Schapker’s probation. On
December 3, 2009, a hearing was held on the State’s petition and the court determined
that Schapker “did violate the spirit of the order, but did not technically violate.”
Appellant’s App. p. 84. Also at the hearing, the court imposed the newly-revised special
conditions of probation for adult sex offenders and continued Schapker’s probation.
In April 2010, the State filed another petition to revoke Schapker’s probation. At
the hearing on this violation, Schapker admitted the violation. A further petition to
revoke Schapker’s probation was filed in October 2010, and the hearing on this petition
was held on March 24, 2011 and May 23, 2011. The court found that Schapker had
2
violated his probation conditions, sentenced him to 1080 days, and revoked and
terminated his probation as unsuccessful. This appeal ensued.
DISCUSSION AND DECISION
Schapker contends that the trial court erred by revoking his probation.
Specifically, he argues that the trial court erred by imposing the new special conditions of
probation at the December 3, 2009 hearing.
A revocation hearing is in the nature of a civil proceeding, and the State must
prove an alleged violation only by a preponderance of the evidence. See Ind. Code § 35-
38-2-3(e) (2010); Kincaid v. State, 736 N.E.2d 1257, 1259 (Ind. Ct. App. 2000). The
decision to revoke a defendant’s probation is a matter within the sound discretion of the
trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). Thus, on appeal, we review
the trial court’s decision for an abuse of that discretion. Id.Although Schapker has filed an appeal of the May 2011 revocation of his
probation, his appeal focuses solely on the trial court’s imposition of the updated special
conditions of probation at the December 3, 2009 hearing. Schapker failed to appeal the
trial court’s December 2009 order; instead, he is attempting an impermissible collateral
attack on his underlying sentence, specifically the trial court’s December 2009 order.
The propriety of the imposition of the updated probation conditions was not before the
trial court in the May 2011 probation revocation proceeding, and Schapker has no basis
to raise the issue in an appeal from that probation revocation. See, e.g., Schlichter v.
3
State, 779 N.E.2d 1155, 1157 (Ind. 2002) (defendant could not challenge trial court’s
imposition of consecutive sentences on appeal from his probation revocation).
Impermissible collateral attack notwithstanding, Schapker’s claim fails. The trial
court did not abuse its discretion by modifying Schapker’s probation conditions in
December 2009 even though the court found no probation violation at that time. The trial
court had authority to modify Schapker’s terms of probation pursuant to Indiana Code
section 35-38-2-1.8 (2005). This statute specifically provides for alteration of probation
terms even in the absence of a violation. See Ind. Code § 35-38-2-1.8; Collins v. State,
911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. Schapker cites Jones v. State,
789 N.E.2d 1008 (Ind. Ct. App. 2003), trans. denied, in support of his argument;
however, his reliance is misplaced because Indiana Code section 35-38-2-1.8 superseded
Jones. See Collins, 911 N.E.2d at 708.
CONCLUSION
Based upon the foregoing, we conclude that the trial court did not abuse its
discretion by revoking Schapker’s probation.
Affirmed.
FRIEDLANDER, J., and DARDEN, J., concur.
4