Kelly Allen v. State of Indiana ( 2012 )


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  • Pursuant to Ind.Appellate Rule 65(D), this
    Memorandum Decision shall not be                           FILED
    regarded as precedent or cited before any                Jul 31 2012, 8:51 am
    court except for the purpose of
    establishing the defense of res judicata,                       CLERK
                                                                  of the supreme court,
    collateral estoppel, or the law of the case.                  court of appeals and
                                                                         tax court
    
    
    
    
    ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:
    
    STEPHEN P. MURPHY, JR.                          GREGORY F. ZOELLER
    Evansville, Indiana                             Attorney General of Indiana
    
                                                    ANDREW R. FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
    
    
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    
    KELLY ALLEN,                                    )
                                                    )
           Appellant-Defendant,                     )
                                                    )
                  vs.                               )     No. 42A01-1112-CR-601
                                                    )
    STATE OF INDIANA,                               )
                                                    )
           Appellee-Plaintiff.                      )
    
    
                        APPEAL FROM THE KNOX SUPERIOR COURT
                           The Honorable W. Timothy Crowley, Judge
                                Cause No. 42D01-0805-FD-031
    
    
                                          July 31, 2012
    
                MEMORANDUM DECISION – NOT FOR PUBLICATION
    
    RILEY, Judge
                                 STATEMENT OF THE CASE
    
           Appellant-Petitioner, Kelly Allen (Allen), appeals the trial court’s revocation of
    
    her probation.
    
           We affirm.
    
                                             ISSUE
    
           Allen raises one issue on appeal, which we restate as follows: Whether the trial
    
    court abused its discretion when it revoked her probation.
    
                           FACTS AND PROCEDURAL HISTORY
    
           On May 12, 2008, the State filed an Information charging Allen with Count I,
    
    neglect of a dependent, a Class D felony, Ind. Code § 35-46-1-4(a)(1); Count II, battery, a
    
    Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(B); and Count III, public intoxication, a
    
    Class B misdemeanor, I.C. § 7.5-5-1-3. On November 5, 2010, Allen entered into a plea
    
    agreement, pursuant to which she pled guilty to Counts I and II in exchange for the
    
    State’s dismissal of Count III. Under the terms of the plea agreement, the State agreed to
    
    recommend to the trial court that Allen receive a sentence of two years for Count I, with
    
    six months served executed on electronic home monitoring and the remaining 18 months
    
    suspended, and one year for Count II, suspended to one year of supervised probation. On
    
    December 13, 2010, the trial court accepted the plea agreement and sentenced Allen
    
    according to the State’s recommendations, with the sentences for Counts I and II to run
    
    concurrently.
    
    
    
                                                2
           On August 26, 2011, the State filed a notice that Allen had violated her probation
    
    on two occasions. Specifically, on July 6, 2011, Allen was charged with resisting law
    
    enforcement, a Class D felony, and disorderly conduct, a Class B misdemeanor.
    
    Likewise, on July 26, Allen violated her probation when the State charged her with
    
    neglect of a dependent, a Class D felony, and possession of paraphernalia, a Class A
    
    misdemeanor. On October 26, 2011, the trial court held a probation violation hearing, at
    
    which Allen admitted to the violations of probation, although not to the crimes that she
    
    had been charged with. The filed charges alone constituted violations of her probation,
    
    so the trial court accepted Allen’s admission that she had violated her probation.
    
           On November 7, 2011, the trial court held a dispositional hearing.            Allen’s
    
    probation officer, James A. Brewer (Brewer), testified that Allen’s July 6 charges
    
    resulted from Allen running along the Lloyd Expressway in Evansville, Indiana, a heavily
    
    travelled expressway, with her two children. According to Brewer, at one point Allen
    
    “tossed her two children, ages five and six, over a fence toward [the expressway].”
    
    (Transcript p. 25). There was some indication that Allen was intoxicated at the time.
    
    Brewer also testified that Allen’s July 26 charges resulted from a domestic disturbance at
    
    a local motel in Vanderburgh County.        Police Officers responded to a report of a
    
    disturbance and found Allen in the motel lobby with a hatchet in her possession, along
    
    with her children. The officers found a bloody syringe on the nightstand in Allen’s motel
    
    room and alleged that she was intoxicated and had been inhaling bath salts.
    
    
    
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             At the close of the evidence, the trial court revoked the balance of Allen’s 18-
    
    month suspended sentence and ordered that she serve the remaining time at the
    
    Department of Correction.
    
             Allen now appeals. Additional facts will be provided as necessary.
    
                                   DISCUSSION AND DECISION
    
             In a probation revocation hearing, the State must prove a violation of probation by
    
    a preponderance of the evidence. I.C. § 35-38-2-3. On appeal, we review the trial
    
    court’s revocation of a defendant’s probation under an “abuse of discretion” standard.
    
    Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). A trial court has abused its discretion
    
    when its decision is clearly against the logic and effect of the facts and circumstances. Id.
    
    at 188. In determining whether the trial court has abused its discretion, this court does
    
    not reweigh the evidence, and we consider conflicting evidence in the light most
    
    favorable to the trial court’s ruling. Mogg v. State, 
    918 N.E.2d 750
    , 755 (Ind. Ct. App.
    
    2009).
    
             Prior to revoking Allen’s probation, the trial court stated that:
    
             [N]ow, we’re talking about dealing with an incident in Evansville where
             DCS Vanderburgh is involved with this lady. Yet, her criminal troubles are
             in Knox [County] because she was on probation here. I appreciate that . . .
             the issue has never been whether [Allen] loves her children or not. Okay,
             that’s not the issue. The issue is, is [Allen] able to provide for her children?
             Does she do the things that 99% of other mother[s] do to make sure her
             children are safe and protected? That’s always been the concern,
             unfortunately. How very distressing to see that so shortly after [Allen] got
             a very good deal in December of 2010, and completed her electronic
             monitoring part of her program, she’s in trouble again. I’m not sure that’s a
             record for backsliding, but it certainly is a dramatic departure from the way
             things were when I last saw her back in December of 2010. While I’m
                                                     4
           sympathetic to her and I fear that incarceration could conceivably cause
           DCS Vanderburgh to move in the vicinity of termination of her parental
           rights, the order was pretty clear about what she needed to do to stay out of
           difficulty. And, while I’m sympathetic to her as a mother, I’m also
           sympathetic to the State in seeking its revocation.
    
    (Tr. pp. 42-43). Based on this statement, Allen now argues that the trial court considered
    
    improper factors prior to revoking her termination: (1) her failure as a mother to protect
    
    her children the way “99% of mothers do;” (2) the trial court’s belief that Allen “got a
    
    very good deal in December of 2010;” and (3) the sympathy the trial court felt towards
    
    Allen as a mother and towards the State for requesting revocation, which Allen claims the
    
    trial court inappropriately balanced. (Tr. p. 43).
    
           Allen admits in her brief that “perhaps this argument places more emphasis on the
    
    technical meaning of words than it does the overall picture,” and we agree. (Appellant’s
    
    Br. p. 7). In the past, this court has characterized probation as “a matter of grace and a
    
    conditional liberty, which is a favor, not a right.” Johnson v. State, 
    659 N.E.2d 194
    , 198
    
    (Ind. Ct. App. 1995). As such, a violation of any condition of probation is sufficient to
    
    sustain a probation revocation. Woods v. State, 
    892 N.E.2d 637
    , 639-40 (Ind. 2008)
    
    (emphasis added). Here, Allen concedes that she violated her probation. Allen also
    
    ignores the trial court’s statement that “[w]hile I’m sympathetic to her and I fear that
    
    incarceration could conceivably cause DCS Vanderburgh to move in the vicinity of
    
    termination of her parental rights, the order was pretty clear about what she need to do to
    
    stay out of difficulty.” (Tr. p. 43) (emphasis added). From this statement, it is clear that
    
    the trial court’s primary concern was that she had violated its order. Because—as the
    
                                                  5
    trial court recognized—Allen violated her probation, and because the trial court has
    
    discretion to revoke a probation upon any violation, we need not address Allen’s
    
    arguments any further. Nevertheless, we will briefly address Allen’s claims.
    
           With respect to her assertion that the trial court inappropriately considered her
    
    capability as a mother, we note that the trial court’s comments must be considered within
    
    the context that both the underlying offense for Allen’s probation and one of her charges
    
    constituting a violation of her probation were neglect of a dependent.          Within this
    
    context, any mention of her CHINS proceedings or her ability to parent her children was
    
    reasonable.
    
           With respect to Allen’s claim that the trial court’s comment that she “got a very
    
    good deal” was an attack upon her original sentence, we find that it is clear that the trial
    
    court was merely recognizing that Allen had been given an opportunity for reformation
    
    but had not taken advantage of it, which the supreme court declared as a reasonable basis
    
    for revocation of probation in Sutton v. State, 
    244 Ind. 368
     (Ind. 1963).
    
           Finally, Allen asserts, without any citation to legal authority, that the trial court
    
    inappropriately balanced the sympathy it felt towards Allen as a mother and the sympathy
    
    it felt towards the State for requesting revocation. We conclude that, as she stated in her
    
    brief, Allen is placing “more emphasis on the technical meaning of words” than “the
    
    overall picture.” (Appellant’s Br. P. 7). We interpret the trial court as merely intending
    
    that while it recognized that Allen might lose her children in a termination hearing
    
    because of a probation revocation—and thus felt sympathy towards her as a mother—it
    
                                                 6
    also recognized that she had violated her probation—and thus understood the State’s
    
    stance.     Under this interpretation, the trial court was not “weighing sympathies.”
    
    Regardless, Allen has not provided any legal authority for the proposition that it is
    
    inappropriate for the trial court to weigh the effects of its decisions.
    
              In sum, we find that the trial court’s statements were appropriate and that,
    
    ultimately, it based its decision to revoke Allen’s probation on her violation of probation.
    
    As any violation of probation is sufficient to support a revocation, we conclude that the
    
    trial court did not abuse its discretion when it revoked her probation.
    
                                            CONCLUSION
    
              Based on the foregoing, we conclude that the trial court did not abuse its discretion
    
    when it revoked Allen’s probation.
    
              Affirmed.
    
    NAJAM, J. and DARDEN, S. J. concur
    
    
    
    
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Document Info

DocketNumber: 42A01-1112-CR-601

Filed Date: 7/31/2012

Precedential Status: Non-Precedential

Modified Date: 10/30/2014