Imani Clark 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,                    Mar 07 2013, 9:08 am
     collateral estoppel, or the law of the case.
    
    
    
    
    ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
    LAURA M. TAYLOR                                    GREGORY F. ZOELLER
    Indianapolis, Indiana                              Attorney General of Indiana
    
                                                       BRIAN REITZ
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana
    
    
    
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    
    IMANI CLARK,                                       )
                                                       )
           Appellant-Defendant,                        )
                                                       )
               vs.                                     )      No. 49A02-1208-CR-630
                                                       )
    STATE OF INDIANA,                                  )
                                                       )
           Appellee-Plaintiff.                         )
    
                         APPEAL FROM THE MARION SUPERIOR COURT
                               The Honorable Robert Altice, Judge
                                 Cause No. 49G02-1101-FC-1441
    
    
                                              March 7, 2013
                     MEMORANDUM DECISION – NOT FOR PUBLICATION
    
    MATHIAS, Judge
           Imani Clark (“Clark”) pleaded guilty in Marion Superior Court to Class C felony
    
    forgery and was sentenced to two years in the Marion County Community Corrections
    
    Work Release program (“MCCC”). The State subsequently filed a petition to revoke
    
    Clark’s probation. The trial court found by a preponderance of the evidence that Clark
    
    violated the terms of her probation and ordered that the previously suspended sentence be
    
    executed. Clark appeals and argues that there was insufficient evidence for the trial court
    
    to revoke her probation and that the trial court abused its discretion by revoking Clark’s
    
    probation.
    
           We affirm.
    
                                 Facts and Procedural History
    
           On July 10, 2011, Clark pleaded guilty to Class C felony forgery and was
    
    sentenced to two years in the MCCC. The Marion Superior Court ordered that Clark
    
    comply with the “Order on Standard Conditions of Home Detention” (“the conditions”).
    
    Appellant App. p. 42. Among other things, the conditions required Clark to stay in her
    
    home at all times except when she was attending an approved educational institution,
    
    regularly-scheduled religious services, or seeking approved employment. The conditions
    
    further required Clark to abide by the schedule created by MCCC and to receive approval
    
    before changing the schedule.     Finally, the conditions required Clark to maintain a
    
    working telephone in her home and a monitoring device both in her home and on her
    
    person. Id.
    
           Clark’s home detention officer and case manager was Justin Moed (“Moed”).
    
    While on home detention, Clark was required to submit her schedule to Moed, and Clark
    
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    was required to verify each departure. Shortly after Moed began supervising Clark on
    
    April 20, 2012, Clark failed to provide verification for departures for school, church, and
    
    her job search. Moed continued to allow Clark to attend church and school despite the
    
    lack of verification, but he revoked permission for her to leave for job searches.   During
    
    a meeting on June 15, Moed again explained to Clark the rules of home detention,
    
    scheduling, and verification.
    
           After this meeting, Clark violated the conditions five times. On June 25, 2012, she
    
    left from 11:01 a.m.-12:37 p.m. without prior authorization. Between June 26 and June
    
    27, 2012, her monitoring device became unplugged for over sixteen hours. When Moed
    
    tried calling Clark at her home to discuss the matter, no one answered. Clark never
    
    responded to his messages. On June 27, 2012, the device indicated that the strap had
    
    been tampered with. On July 3, 2012, she left her home two hours and fourteen minutes
    
    earlier than the authorized time. Finally, on July 4, 2012, she left her home between
    
    12:58 a.m.-1:34 p.m. without prior authorization. Tr. pp. 13-16.
    
           On July 2, 2012, the State filed a notice of community corrections violations, and
    
    amended the notice on July 18, 2012. Appellant App. pp. 43-44. After a hearing on July
    
    27, 2012, the Marion Superior Court found by a preponderance of the evidence that Clark
    
    had violated the terms of her probation and ordered that the two year suspended sentence
    
    be executed minus 171 days already served through home detention and awaiting trial.
    
    Clark appeals and argues that there was insufficient evidence for the trial court to revoke
    
    her probation, and that the trial court abused its discretion by revoking her probation.
    
    
    
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                                    Discussion and Decision
    
          The trial court’s decision whether to revoke probation is reviewed for an abuse of
    
    discretion. Rosa v. State, 
    832 N.E.2d 1119
    , 1121 (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.” Id. Under Indiana Code section 35-38-2-3(a), a court
    
    may revoke probation if a person violates a condition of probation during the
    
    probationary period. In addition under Indiana Code section 35-38-2-1(b), the court may
    
    revoke probation if a probationer commits any additional crime.
    
                                    I. Insufficient Evidence
    
          Clark argues that there was insufficient evidence for the trial court to revoke her
    
    probation. When the sufficiency of evidence is challenged, we will neither “reweigh the
    
    evidence nor reassess witness credibility.” Whatley v. State, 
    847 N.E.2d 1007
    , 1010 (Ind.
    
    Ct. App. 2006) (citing Marsh v. State, 
    818 N.E.2d 143
    , 148 (Ind. Ct. App. 2004)). Rather,
    
    we look to the evidence most favorable to the State and affirm the judgment if “there is
    
    substantial evidence of probative value supporting revocation.”       Id.   We are also
    
    reminded that the State’s burden of proof regarding an alleged probation violation is
    
    proof by a preponderance of the evidence. Id.
    
          In this case, Clark’s home detention officer, Moed, testified that Clark had
    
    violated the terms of her probation on five different occasions in 2012: June 25, June 26,
    
    June 27, July 3, and July 4. These violations occurred despite multiple explanations of
    
    the terms of her probation and Moed’s flexibility with time for school and church. Clark
    
    made no attempt to provide any verification for these violations, did not call Moed to
    
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    explain the reasons for these violations, and did not respond to Moed’s calls regarding
    
    these violations. Aside from Moed’s testimony, Clark’s electronic monitoring equipment
    
    indicated two different violations. Clark’s monitoring device was unplugged for at least
    
    sixteen hours between June 26-27, 2012, and on June 27 the strap was tampered with.
    
    Moed called Clark during this period, and no one answered. Clark did not respond to his
    
    messages. Clark even admitted to the violation on July 4, 2012:
    
           Q:    Where were you on July 4th [2012], where did you go?
           A:    I was at home.
           Q:    It says you left from 12:58-1:34.
           A:    I didn’t go—I didn’t go no where ‘til like, maybe, like, 12:58, like how
                 it said.
    Tr. p. 39.
    
           As previously noted, a “violation of a single condition of probation is sufficient to
    
    permit a trial court to revoke probation.” Rosa v. State, 
    832 N.E.2d 1119
    , 1121 (Ind. Ct.
    
    App. 2005); see also Smith v. State, 
    727 N.E.2d 763
    , 766 (Ind. Ct. App. 2000); Brooks v.
    
    State, 
    692 N.E.2d 951
    , 953-54 (Ind. Ct. App. 1998). Under these facts and circumstances,
    
    the trial court’s revocation of Clark’s probation is supported by sufficient evidence.
    
                                            II. Sentencing
    
           Clark next argues that revoking her probation was an abuse of the trial court’s
    
    discretion.    She asserts that the nature and circumstances of her violations are so
    
    innocuous that revocation was an abuse of the court’s discretion. We review a trial
    
    court’s decision in a probation revocation proceeding for an abuse of discretion. Woods v.
    
    State, 
    892 N.E.2d 637
    , 639 (Ind. 2008). An abuse of discretion occurs if the decision is
    
    clearly against the logic and effect of the facts and circumstances before the court.
    
    
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    Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). Probation revocation is a two-step
    
    process. First, the trial court must make a factual determination that a violation of a
    
    condition of probation actually occurred. Terrell v. State, 
    886 N.E.2d 98
    , 103 (Ind. Ct.
    
    App. 2008), trans. denied. If a violation is proven, the trial court must then determine if
    
    the violation warrants revocation of the probation. Id. at 104-05.
    
           Clark’s sentence was not an abuse of discretion. She repeatedly violated the terms
    
    of her probation. Clark admitted to leaving on July 4, 2012. Clark attempts to minimize
    
    this probation violation by alleging that she did not know that her equipment had become
    
    unplugged and that she was doing what she claimed to be doing. Clark also violated the
    
    conditions several other times. In light of Clark’s multiple probation violations, the trial
    
    court acted well within its discretion when it sentenced her to serve two years of her
    
    previously-suspended sentence.
    
                                           Conclusion
    
           There was sufficient evidence for the trial court to find that Clark had violated the
    
    terms of her probation. The trial court did not abuse its discretion by ordering Clark’s
    
    sentence to be executed with the Indiana Department of Corrections.
    
           Affirmed.
    
    KIRSCH, J., and CRONE, J., concur.
    
    
    
    
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