Donald L. Swain 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
                                                                       FILED
                                                                    Jan 22 2013, 9:12 am
    court except for the purpose of establishing
    the defense of res judicata, collateral
                                                                            CLERK
    estoppel, or the law of the case.                                     of the supreme court,
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    ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
    
    DAVID W. STONE IV                                   GREGORY F. ZOELLER
    Anderson, Indiana                                   Attorney General of Indiana
    
                                                        MICHAEL GENE WORDEN
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana
    
    
    
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    DONALD L. SWAIN,                                    )
                                                        )
           Appellant-Defendant,                         )
                                                        )
                   vs.                                  )       No. 48A05-1206-CR-320
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
           Appellee-Plaintiff.                          )
    
    
                       APPEAL FROM THE MADISON CIRCUIT COURT
                            The Honorable Rudolph R. Pyle III, Judge
           Cause Nos. 48C01-0811-FD-665, 48C01-9908-CF-193, and 48C01-9910-DF-244
    
    
    
                                             January 22, 2013
    
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    KIRSCH, Judge
           Donald L. Swain (“Swain”) appeals the trial court’s order revoking his probation
    
    under three different cause numbers. He raises two issues that we restate as:
    
           I.     Whether the State presented sufficient evidence to prove that Swain
                  violated one or more conditions of his probation; and
    
           II.    Whether the trial court abused its discretion when it revoked Swain’s
                  probation and ordered that he serve his previously-suspended sentences
                  in the Department of Correction.
    
           We affirm.
    
                           FACTS AND PROCEDURAL HISTORY
    
           In May 1999, the State charged Swain in cause number 48C01-9910-DF-244 (“Case
    
    244”) with Class D felony operating a vehicle after being adjudged an habitual traffic
    
    offender and Class A misdemeanor resisting law enforcement. Several months later, in
    
    August 1999, the State charged Swain in cause number 48C01-9908-CF-193 (“Case 193”)
    
    with Class C felony battery by means of a deadly weapon, Class D felony operating a vehicle
    
    after being adjudged an habitual traffic offender, Class D felony resisting law enforcement,
    
    Class A misdemeanor resisting law enforcement, Class A misdemeanor possession of
    
    marijuana, Class B misdemeanor false informing, and being an habitual substance offender.
    
           In April 2002, Swain pleaded guilty to all counts in Case 193, except for the Class A
    
    misdemeanor possession of marijuana, and to all counts in Case 244. In April 2003, the trial
    
    court sentenced Swain in Case 244 to consecutive sentences on the two counts, which totaled
    
    two and one-half years’ imprisonment and which was to be served consecutively to the
    
    sentence in Case 193. On the same date, the trial court sentenced Swain in Case 193 to
    
    sentences that totaled sixteen years of incarceration.
    
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           In November 2008, the State charged Swain in cause number 48C01-0811-FD-665
    
    (“Case 665”) with Class D felony attempted residential entry and Class B misdemeanor
    
    criminal mischief. A few months later, in February 2009, Swain pleaded guilty to an
    
    amended count of Class A misdemeanor trespass and to the criminal mischief charge. The
    
    trial court sentenced him on that date to one year of imprisonment, all time suspended to
    
    probation. The sentence in Case 665 was to be served consecutive to Case 244.
    
           Meanwhile, in January 2009, a notice of probation violation was filed against Swain in
    
    Case 244, alleging (1) failure to pay child support, (2) failure to report to probation, and (3)
    
    that, in December 2008, Swain was arrested and charged with contempt of court for failure to
    
    pay child support, attempted residential entry, and criminal mischief. Appellant’s App. at 65.
    
    Thereafter, on April 15, 2010, three separate notices of probation violation were filed, one
    
    each in Cases 193, 244, 665. The notice of violation for Case 665 alleged that Swain failed
    
    to report to probation, pay court costs, and pay probation fees. Id. at 31. The notice of
    
    violation for Case 244 likewise alleged a failure to report to probation, pay court costs, and
    
    pay probation user fees. Id. at 66. An amended notice of violation for Case 193, filed April
    
    27, 2012, similarly alleged that Swain failed to report to the probation department and failed
    
    to pay probation fees. It also alleged, among other things, that Swain violated the laws of
    
    Indiana or the United States and failed to behave well in society by virtue of the fact that (1)
    
    in September 2009 he was charged with false informing under cause number 48H02-0909-
    
    CM-4435, and (2) in December 2010 he was charged with four counts of felony nonsupport
    
    
    
    
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    of a dependent child under cause number 48C01-1012-FC-872. Appellant’s App. at 58-59
    
    (subsections (d) and (i) of notice of probation violation).
    
           On June 11, 2012, the trial court held an evidentiary hearing on the pending notices of
    
    probation violations. At the hearing, Swain admitted to the following violations: (1) he failed
    
    to report to probation department; (2) he was behind on probation fees and court costs; and
    
    (3) he committed the offense of false informing. Tr. at 4-5. Also, the State presented
    
    evidence that Swain had been ordered to pay child support for his three children, but he failed
    
    to pay child support for several years such that his arrearage at the time of the hearing was in
    
    excess of $33,000. During the hearing, Swain discussed his addiction to crack cocaine,
    
    explaining that some years prior, when he was “on the run” from law enforcement, he
    
    became addicted to crack cocaine. While in prison, he became “clean,” but after he was
    
    “modified” out to work release in 2007, and thereafter released to unsupervised probation, he
    
    became addicted again. Id. at 37-38. Swain admitted that during that time on probation he
    
    took no steps to obtain treatment for his addiction. Id. at 38-39.
    
           The trial court determined that Swain had violated his probation in all three causes.
    
    The trial court ordered Swain to serve, consecutively, the following previously-suspended
    
    sentences in the Department of Correction: 2,758 days for Case 193, 545 days for Case 244,
    
    and three hundred sixty-five days for Case 665. Swain now appeals.
    
                                 DISCUSSION AND DECISION
    
                         I. Sufficiency of Evidence of Financial Violations
    
           Swain asserts that the evidence was not sufficient to support the trial court’s findings
    
    
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    of probation violations that were based on his failure to pay court courts and probation fees.
    
    A person’s probation may be revoked if he or she has violated a condition of probation
    
    during the probationary period. Ind. Code § 35-38-2-3(a)(1). However, “[p]robation may
    
    not be revoked for failure to comply with conditions of a sentence that imposes financial
    
    obligations on the person unless the person recklessly, knowingly, or intentionally fails to
    
    pay.” Ind. Code § 35-38-2-3(f). Therefore, in probation revocation cases involving payment
    
    of a financial obligation, the State has the burden to prove the fact of the violation, i.e., less
    
    than full payment, and it must also prove the probationer’s state of mind. Smith v. State, 
    963 N.E.2d 1110
    , 1112 (Ind. 2012).         The probationer’s mental state may be proven by
    
    circumstantial evidence and inferred from the facts and circumstances of the case. Id. at
    
    1113. With respect to the ability to pay, it is the probationer’s burden “to show facts related
    
    to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the
    
    trial court that further imprisonment should not be ordered.” Id. (citing Runyon v. State. 
    939 N.E.2d 613
    , 617 (Ind. 2010)).
    
           Here, each of the notices of violation of probation alleged failure to pay probation fees
    
    and court costs, and, at the hearing, Swain admitted that he had not paid those financial
    
    obligations. Tr. at 4-5. He maintains, however, that there was no evidence that he had the
    
    financial ability to have paid court costs and probation fees, and absent such proof, probation
    
    could not be revoked for failure to meet those financial obligations. Appellant’s Br. at 4. He
    
    requests that we reverse the finding of violations for not paying probation fees and court
    
    costs and remand the case for a new determination of an appropriate sanction for the
    
    
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    remaining violations.
    
           We find that, contrary to Swain’s claim, the State presented sufficient evidence to
    
    establish that his failure to pay probation fees and court costs was knowing or intentional. By
    
    Swain’s own admission, he was “on the run” for a year before being incarcerated, and during
    
    that time, he became addicted to crack cocaine. Tr. at 37. Although he became “clean”
    
    while in prison, he became addicted again when he was released on unsupervised probation
    
    and took no steps to obtain treatment for the addiction.          Id. at 37-39.     From this
    
    circumstantial evidence that Swain was buying crack cocaine, the trial court could infer that
    
    Swain had an ability to pay for probation fees and court costs but knowingly or intentionally
    
    chose not to apply those funds toward those financial obligations, as well as child support.
    
    Moreover, at the hearing, Swain made no argument concerning an inability to make the
    
    requisite payments. He failed to carry his burden to show an inability to pay or that he made
    
    bona fide efforts to do so. Under these circumstances, the State presented sufficient evidence
    
    to establish Swain violated various financial conditions of his probation.
    
                                  II.    Revocation of Probation
    
           Probation is a matter of grace and a conditional liberty, not a right to which a
    
    defendant is entitled. Smith, 963 N.E.2d at 1112. The trial court determines the conditions
    
    of probation and may revoke probation whenever any of those conditions are violated.
    
    Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind. 2009). The trial court’s sentencing decisions for
    
    probation violations are reviewed for an abuse of discretion. Prewitt v. State, 878 N.E.2d.
    
    184, 188 (Ind. 2007). An abuse of discretion occurs where the trial court’s decision is clearly
    
    
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    against the logic and effect of the facts and circumstances. Smith, 963 N.E.2d at 1112.
    
           When reviewing the sufficiency of the evidence to support a probation revocation, we
    
    consider only the evidence most favorable to the judgment without reweighing the evidence
    
    or judging witness credibility. Figures v. State, 
    920 N.E.2d 267
    , 272 (Ind. Ct. App. 2010).
    
    A probation revocation hearing is civil in nature, and the State’s burden is to prove the
    
    alleged violations by a preponderance of the evidence. Id. If there is substantial evidence of
    
    probative value to support the trial court’s conclusion that a defendant has violated any terms
    
    of probation, we will affirm its decision to revoke probation. Id.
    
           In this case, Swain admitted at the hearing to several of the alleged violations,
    
    including: failure to report to probation department on multiple occasions; committing false
    
    informing, a new offense; and being in arrears in child support in an amount over $33,000,
    
    constituting another new offense, namely Class C felony nonsupport of a dependent. “Proof
    
    of any one violation is sufficient to revoke a defendant’s probation.” Figures, 920 N.E.2d at
    
    273. As we found above, the State also presented sufficient evidence to establish that Swain
    
    recklessly, knowingly, or intentionally failed to pay probation fees and court costs, both of
    
    which were conditions of probation in all three cases. Considering this evidence, the trial
    
    court was well within its discretion to revoke Swain’s probation and order him to serve his
    
    previously-suspended sentences.
    
           Affirmed.
    
    NAJAM, J., and MAY, J., concur.
    
    
    
    
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Document Info

DocketNumber: 48A05-1206-CR-320

Filed Date: 1/22/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014