Jesse R. Luckey v. State of Indiana ( 2013 )


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  • 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:
    
    DERICK W. STEELE                                   GREGORY F. ZOELLER
    Deputy Public Defender                             Attorney General of Indiana
    Kokomo, Indiana
                                                       RICHARD C. WEBSTER
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana
    
                                                                                Mar 25 2013, 9:32 am
    
    
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    JESSE R. LUCKEY,                                   )
                                                       )
           Appellant-Defendant,                        )
                                                       )
                   vs.                                 )      No. 34A04-1208-CR-399
                                                       )
    STATE OF INDIANA,                                  )
                                                       )
           Appellee-Plaintiff.                         )
    
    
                          APPEAL FROM THE HOWARD SUPERIOR COURT
                               The Honorable William C. Menges, Jr., Judge
                         Cause Nos. 34D01-0803-FD-147 and 34D01-0904-FD-387
    
    
    
                                             March 25, 2013
    
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    KIRSCH, Judge
          Jesse R. Luckey (“Luckey”) appeals the trial court’s order revoking his probation
    
    in two underlying cases arising from his convictions for possession of a controlled
    
    substance1 as a Class D felony, possession of marijuana2 as a Class D felony, and
    
    possession of paraphernalia3 as a Class A misdemeanor. In this appeal, Luckey contends
    
    that the trial court utilized an improper burden of proof and that the evidence was not
    
    sufficient to establish that he had violated the conditions of his probation by a
    
    preponderance of the evidence.
    
          We reverse.
    
                                  FACTS AND PROCEDURAL HISTORY
    
          In January 2009, Luckey pleaded guilty to possession of a controlled substance
    
    under cause number 34D01-0803-FD-147 (“Cause No. 147”) and was sentenced to three
    
    years with one hundred twenty days executed, sixty days on home detention, and the
    
    balance suspended to probation. In April 2009, Luckey was charged with possession of
    
    marijuana and possession of paraphernalia under cause number 34D01-0904-FD-387
    
    (“Cause No. 387”). A petition to revoke his probation in Cause No. 147 was also filed.
    
    In February 2010 after he admitted to violating his probation, Luckey was ordered to
    
    serve eighteen months of his previously suspended sentence in Cause No. 147. In Cause
    
    No. 387, Luckey pleaded guilty and was sentenced to one year suspended to probation.
    
    
    
    
          1
              See Ind. Code § 35-48-4-7(a).
          2
              See Ind. Code § 35-48-4-11.
          3
              See Ind. Code § 35-48-4-8.3.
    
                                              2
            In February 2012, Luckey was charged with criminal mischief as a Class A
    
    misdemeanor in cause number 34D03-1202-CM-143 (“Cause No. 143”), and in April,
    
    2012, he was charged with attempted murder as a Class A felony and aiding, inducing or
    
    causing aggravated battery as a Class B felony in cause number 34D04-1204-MR-57
    
    (“Cause No. 057”). As a result of these new charges, petitions to revoke Luckey’s
    
    probation were filed in Cause Nos. 147 and 387.
    
            The trial court held a combined hearing on the two revocation petitions in July
    
    2012. At the hearing, the State introduced the Chronological Case Summaries (“CCS”)
    
    from Cause Nos. 143 and 057. Following the conclusion of the hearing, the trial court
    
    entered an amended order in both Cause Nos. 147 and 387 finding “that the Defendant
    
    did violate his probation as alleged,” revoking Luckey’s probation in both cases and
    
    ordering him to serve the time remaining on his previously suspended sentences.
    
                                        DISCUSSION AND DECISION
    
            Luckey maintains that the trial court abused its discretion in revoking his
    
    probation. Specifically, Luckey argues that the trial court applied an improper standard
    
    of probable cause to determine that he had committed a new offense and that it should
    
    have utilized preponderance of the evidence as the proper standard. The State contends
    
    that the trial court properly applied a probable cause standard.4
    
            The decision to revoke probation is within the sound discretion of the trial court,
    
    and its decision is reviewed on appeal for abuse of that discretion. Ripps v. State, 968
    
            4
              We note that the State filed its appellate brief before our Supreme Court handed down Heaton v.
    State, 48S02-1206-CR-350, 
    2013 WL 812402
     (Ind. Mar. 5, 2013).
    
    
                                                       
    3 N.E.2d 323
    , 326 (Ind. Ct. App. 2012) (citing Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind.
    
    2009) (citations omitted)). An abuse of discretion occurs when the decision is clearly
    
    against the logic and effect of the facts and circumstances before the court. Id. (citing
    
    Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007)). In order to revoke probation, the trial
    
    court must make a factual determination that a violation of a condition of probation
    
    actually occurred, and if a violation is found, then the trial court must determine the
    
    appropriate sanctions for the violation. Woods v. State, 
    892 N.E.2d 637
    , 640 (Ind. 2008).
    
           The due process requirements of a probation revocation proceeding are well-
    
    established: Probation is a favor granted by the State, not a right to which a criminal
    
    defendant is entitled. Terrell v. State, 
    886 N.E.2d 98
    , 100 (Ind. Ct. App. 2008) (citing
    
    Parker v. State, 
    676 N.E.2d 1083
    , 1085 (Ind. Ct. App. 1997)), trans. denied. However,
    
    once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id.
    
    Probation revocation implicates a defendant’s liberty interest, which entitles him to some
    
    procedural due process. Id. (citing Parker, 676 N.E.2d at 1085 (citing Morrissey v.
    
    Brewer, 
    408 U.S. 471
    , 482 (1972))). Because probation revocation does not deprive a
    
    defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the
    
    full due process rights afforded a defendant in a criminal proceeding. Id.
    
           Due process requires a written statement by the fact finder regarding the evidence
    
    relied upon and the reasons for revoking probation. Id. at 101. This requirement is
    
    imposed on trial courts to promote accurate fact finding and to ensure the accurate review
    
    of revocation decisions. Hubbard v. State, 
    683 N.E.2d 618
    , 620-21 (Ind. Ct. App. 1997).
    
    The rationale underlying the writing requirement in probation revocation proceedings has
    
                                                  4
    its genesis in Morrissey where the United States Supreme Court concluded that while an
    
    informal hearing structure is permissible for parole revocation proceedings, it still must
    
    comport with basic notions of due process, including a written statement by the fact
    
    finders as to the evidence relied on and the reasons for revoking parole. 408 U.S. at 488-
    
    89 (emphasis added). In Gagnon v. Scarpelli, the Supreme Court applied the Morrissey
    
    holding to probation revocation proceedings, holding that for purposes of due process
    
    analysis, the two proceedings are the same. 
    411 U.S. 778
    , 782 (1973). Our Supreme
    
    Court in Medicus v. State, 
    664 N.E.2d 1163
     (Ind. 1996), applied the Gagnon rule to
    
    probation revocation proceedings. Id. at 1164-65.
    
           Here, the trial court failed to enter findings of fact regarding the evidence upon
    
    which it relied and its reasons for revoking probation. Rather, it merely made the
    
    conclusory finding that the defendant violated the conditions of his probation. Although
    
    clearly not the preferred way of fulfilling the writing requirement, we have held that
    
    placing the transcript of the evidentiary hearing in the record is sufficient if it contains a
    
    clear statement of the trial court’s reasons for revoking probation. Clark v. State, 
    580 N.E.2d 708
    , 711 (Ind. Ct. App. 1991). In the present case, Luckey does not raise an issue
    
    relating to the trial court’s failure to enter written findings setting out the evidence and its
    
    rationale for ordering revocation. Further, it is clear from our review of the record that
    
    the trial court determined that the issue before the trial court was narrow and the evidence
    
    upon which the trial court relied was minimal and not open to varying interpretations.
    
    Accordingly, in the interests of judicial economy, we elect to determine this matter on the
    
    merits rather than remand for the entry of specific findings.
    
                                                   5
             On March 5, 2013, our Supreme Court held that the correct burden of proof for a
    
    trial court to apply in a probation revocation proceeding is the preponderance of the
    
    evidence standard. Heaton v. State, 48S02-1206-CR-350, 
    2013 WL 812402
     (Ind. Mar. 5,
    
    2013).
    
             Here, the only evidence submitted by the State regarding whether Luckey had
    
    committed a new crime was certified copies of the CCS for Cause Nos. 143 and 057
    
    showing the filing of the charges and the trial court’s probable cause determination. On
    
    the basis of this evidence, the trial court found that Luckey had violated the terms of his
    
    probation by the commission of new offenses. Although the evidence was sufficient for
    
    the trial court to find probable cause that Luckey had committed the new offenses, it was
    
    insufficient to establish the commission of such crimes by a preponderance of the
    
    evidence. Accordingly, we reverse the trial court’s order revoking Luckey’s probation.
    
             Reversed.
    
    MATHIAS, J., and CRONE, J., concur.
    
    
    
    
                                                6