Maurice Higgins v. State of Indiana ( 2012 )


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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:
    
    ZACHARY A. WITTE                                GREGORY F. ZOELLER
    Locke & Witte                                   Attorney General of Indiana
    Fort Wayne, Indiana
    
                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                                                                     FILED
                                                                                  Nov 05 2012, 9:49 am
                                  IN THE
                        COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                        of the supreme court,
                                                                                        court of appeals and
                                                                                               tax court
    
    
    
    
    MAURICE HIGGINS,                                )
                                                    )
           Appellant-Defendant,                     )
                                                    )
                  vs.                               )       No. 02A03-1204-CR-189
                                                    )
    STATE OF INDIANA,                               )
                                                    )
           Appellee-Plaintiff.                      )
    
    
                         APPEAL FROM THE ALLEN SUPERIOR COURT
                              The Honorable Frances C. Gull, Judge
                                Cause No. 02D05-1111-FD-1526
    
    
    
    
                                         November 5, 2012
    
    
                   MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    
    ROBB, Chief Judge
                                     Case Summary and Issue
    
           Maurice Higgins’s probation was revoked and the trial court ordered that he serve
    
    the entirety of his previously-suspended sentence at the Department of Correction
    
    (“DOC”).    Higgins appeals the trial court’s disposition, arguing revocation of his
    
    probation and the order that he serve his entire suspended sentence at the DOC was an
    
    abuse of the trial court’s discretion. Concluding the trial court did abuse its discretion,
    
    we reverse and remand.
    
                                   Facts and Procedural History
    
           On December 1, 2011, Higgins entered a plea of guilty to invasion of privacy and
    
    was sentenced to one year and 183 days, all suspended to probation. One of the terms
    
    and conditions of his probation was that he maintain good behavior. In January of 2012,
    
    Higgins was arrested and charged with invasion of privacy. The State filed a petition to
    
    revoke his probation for violating the good behavior condition.
    
           The 2012 invasion of privacy charge was tried to a jury, which found Higgins not
    
    guilty. Immediately following the verdict, the trial court, at the request of the parties,
    
    ruled on the probation revocation based on the evidence presented during trial. The trial
    
    court found that “[t]he Petition alleges on January 21st of this year you were arrested for
    
    Invasion of Privacy, a Class D Felony . . . . Based on the evidence that I’ve heard I
    
    would find by a preponderance of the evidence that you were in fact arrested for Invasion
    
    of Privacy. Order the suspended sentence revoked.” Transcript at 94. In order to
    
    determine Higgins’s eligibility for alternative sentencing, however, the trial court set the
    
    matter over for a hearing at a later date. On April 10, 2012, the parties again appeared in
    
    court and informed the trial court that Higgins had been denied for both home detention
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    and work release programs. Finding Higgins ineligible for alternative sentencing, the
    
    trial court ordered him committed to the DOC for one year and 183 days, with credit for
    
    pre-trial time served. Higgins now appeals this disposition.
    
                                     Discussion and Decision
    
                                      I. Standard of Review
    
           Probation revocation is a two-step process. Alford v. State, 
    965 N.E.2d 133
    , 134
    
    (Ind. Ct. App. 2012), trans. denied. First, the court must make a factual determination
    
    that a violation of a condition of probation has occurred. Id. Second, the trial court must
    
    determine if the violation warrants revocation of the probation. Ripps v. State, 
    968 N.E.2d 323
    , 326 (Ind. Ct. App. 2012). Upon revoking probation, the trial court may
    
    impose one of several sanctions provided by statute. Alford, 965 N.E.2d at 134; see also
    
    Ind. Code § 35-38-2-3(h). We review a trial court’s sentencing decisions for probation
    
    violations for an abuse of discretion. Alford, 965 N.E.2d at 134. An abuse of discretion
    
    occurs when the decision is clearly against the logic and effect of the facts and
    
    circumstances before the court. Id.
    
                                     II. Violation of Probation
    
           Higgins concedes “[t]here is no question that he was arrested for invasion of
    
    privacy.” Brief of the Appellant at 10. However, he argues that the trial court abused its
    
    discretion in revoking his probation for this violation and/or ordering him to serve all of
    
    his suspended time at the DOC.
    
           We acknowledge that the standard of proof for a finding of guilty is beyond a
    
    reasonable doubt and the standard of proof for a probation violation is preponderance of
    
    the evidence, and we have often stated that because of the lesser standard, a finding of
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    guilt is not a necessary precursor for a finding of a violation based on a new criminal
    
    offense. See Dokes v. State, 
    971 N.E.2d 178
    , 180-81 (Ind. Ct. App. 2012) (“Because of
    
    the difference between the burden of proof required to convict someone of a crime and
    
    the burden of proof required to revoke probation, the court could revoke probation after
    
    finding [defendant] not guilty based on the same evidence.”). In Hoffa v. State, 
    267 Ind. 133
    , 
    368 N.E.2d 250
     (1977), our supreme court noted that
    
           “[g]ood behavior” or lawful conduct is a “term” or condition of a
           defendant’s probation and violation of this term may result in the
           revocation of probation. It is not necessary that a criminal conviction
           precede revocation of probation for unlawful conduct; it is only necessary
           that the trial judge, after a hearing, finds such unlawful conduct to have
           occurred.
    
    Id. at 135, 368 N.E.2d at 252. The defendant in Hoffa was alleged to have violated the
    
    condition of his probation prohibiting arrest. Although “[a]n arrest standing alone does
    
    not support the revocation of a defendant’s probation[,]” the trial court heard evidence at
    
    the probation revocation hearing from which it found that the arrest was reasonable and
    
    that there was probable cause to believe that the defendant had committed a crime,
    
    therefore supporting the revocation of the defendant’s probation. Id. at 136, 368 N.E.2d
    
    at 252; see also Cooper v. State, 
    917 N.E.2d 667
    , 674 (Ind. 2009) (“The law is well
    
    settled that an arrest standing alone will not support the revocation of probation.
    
    However, . . . if the trial court after a hearing finds that the arrest was reasonable and
    
    there is probable cause to believe the defendant violated a criminal law, revocation will
    
    be sustained.”) (citations omitted).
    
    
    
    
                                                4
             As in Hoffa, the sole allegation of the petition to revoke Higgins’s probation was
    
    that he had been arrested for a new crime while on probation.1 He was tried by a jury for
    
    that crime and found not guilty immediately prior to the trial court revoking his probation
    
    based upon the same evidence presented to the jury. However, unlike the trial court in
    
    Hoffa, the trial court here did not find that the evidence presented was sufficient to prove
    
    by a preponderance of the evidence that Higgins had in fact committed the crime of
    
    invasion of privacy or even that there was probable cause to support the arrest; the trial
    
    court found only that a preponderance of the evidence proved that he had “in fact [been]
    
    arrested” for that crime. Tr. at 94. We therefore agree with Higgins that his arrest was
    
    insufficient to support revocation of his probation and commitment to the DOC for the
    
    entirety of his previously-suspended sentence and the trial court abused its discretion in
    
    doing so.
    
             While ordinarily Indiana Appellate Rule 65(E) would require certification of this
    
    opinion prior to action by the trial court, in equity and law, courts have the inherent
    
    authority to require immediate compliance with their orders and decrees in order to give
    
    effective relief. See Noble Cnty. v. Rogers, 
    745 N.E.2d 194
    , 198 (Ind. 2001); State ex
    
    rel. Brubaker v. Pritchard, 
    236 Ind. 222
    , 226-27, 
    138 N.E.2d 233
    , 235 (1956). Because
    
    Higgins has already served a substantial portion of his previously-suspended sentence
    
    which we have found to be in error, we direct the trial court to order Higgins’s release
    
    forthwith.
    
    
    
    
             1
               This is based upon the discussion between the parties and the trial court at the hearing; the actual petition
    to revoke probation is not a part of the record on appeal.
                                                               5
                                            Conclusion
    
           The trial court abused its discretion in revoking Higgins’s probation and ordering
    
    him to serve the entirety of his previously-suspended sentence at the DOC based solely
    
    upon the fact of an arrest. The trial court’s order is reversed and this case is remanded to
    
    the trial court to order Higgins’s immediate release.
    
           Reversed and remanded.
    
    BAKER, J., and BRADFORD, J., concur.
    
    
    
    
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