Joshua Alford v. State of Indiana ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOSEPH M. CLEARY GREGORY F. ZOELLER
Collignon & Dietrick Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
FILED
Apr 05 2012, 8:55 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JOSHUA ALFORD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1109-CR-816
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1004-FC-33630
April 5, 2012
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Joshua Alford appeals the revocation of his probation and the trial court’s order
that he serve the remaining 309 days of his previously suspended sentence in the Indiana
Department of Correction. He contends that the trial court abused its discretion by
finding this his conduct violated the no-contact order that applied to his father,
specifically that his false review of his father’s cleaning company to Angie’s List did not
constitute contact. Because we determine that this behavior does constitute contact, we
affirm.
Facts and Procedural History
On April 29, 2010, the State charged Alford with two counts of Class C felony
child molesting and later added a charge of Class D felony criminal confinement. The
trial court also issued a no-contact order on April 29, prohibiting Alford from contacting
the victim, his daughter, or her mother, his wife, “in person, by telephone or letter,
through an intermediary, or in any way, directly or indirectly, except through an attorney
of record . . . . This includes, but is not limited to, acts of harassment . . . .” Appellee’s
App. p. 1. After a hearing on May 21, 2010, the no-contact order was extended to
include Alford’s father, Jim, to the list of people that Alford could not contact due to
Jim’s involvement in the custody dispute that arose out of this incident.
In January 2011, Alford pled guilty under a combined plea agreement to Class D
felony criminal confinement and Class A misdemeanor domestic battery under another
cause number. He was sentenced to concurrent suspended sentences of 887 days for each
conviction, with 268 days of credit time and 365 days of probation. As a special
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condition of probation, the trial court continued the no-contact order for several
individuals, including Alford’s father, Jim.
On July 28, 2011, the State filed a notice of probation violation alleging that
Alford had violated the no-contact order by submitting a false report to Angie’s List
about his father’s cleaning business that said, “They did a good job cleaning, but they
stole my wife’s diamond earrings.” Appellant’s App. p. 66. At the probation-revocation
hearing, Alford admitted to sending the false report but denied that it violated the no-
contact order because he did not have direct contact with his father. The trial court
disagreed, stating that “The acts of the defendant could have no goal other than to bring
distress to a protected person because of his involvement in the prosecution . . . .” Tr. p.
5. The trial court ordered Alford to serve the remaining 309 days of his suspended
sentence. Id. at 9.
Alford now appeals.
Discussion and Decision
Alford contends that there was insufficient evidence for the trial court to revoke
his probation, specifically that his actions did not constitute a violation of the no-contact
order. We disagree.
Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination that a violation
of a condition of probation has occurred. Id. When a probationer admits to the violation,
the court can proceed to the second step of the inquiry and determine whether the
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violation warrants revocation. Id. At this step, the probationer must be given an
opportunity to present evidence that explains and mitigates his violation. Id.
Upon the revocation of probation, a trial court may impose one or more of the
following sanctions: (1) continue the person on probation, with or without modifying or
enlarging the conditions; (2) extend the person’s probationary period for not more than
one year beyond the original probationary period; (3) order execution on all or part of the
sentence that was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g).
We review a trial court’s sentencing decisions for probation violations for an abuse of
discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
We defined “contact” in Wright v. State as
“establishing of communication with someone” or “to get in
communication with.” Webster’s Dictionary 249 (10th ed. 1993).
Communication occurs when a person makes something known or
transmits information to another. Ajabu v. State, 677 N.E.2d 1035, 1042
(Ind. Ct. App. 1997), trans. denied. Further, communication may be either
direct or indirect and is not limited by the means in which it is made known
to another person. Id.
688 N.E.2d 224, 226 (Ind. Ct. App. 1997) (emphasis added). Alford’s contact with Jim
was indirect and not immediately known by Jim; however, it was contact nonetheless.
Alford used Angie’s List as an intermediary through which to communicate with Jim in
an effort to harass him, in direct violation of the no-contact order that was a condition of
his probation.
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Alford also contends that the no-contact order was not sufficiently clear, arguing
that he was not informed that contacting a third party about his father would result in a
violation. Conditions of probation must be sufficiently clear that they “describe with
clarity and particularity the misconduct that will result in penal consequences . . . .”
Hunter v. State, 883 N.E.2d 1161, 1163 (Ind. 2008). Alford argues that he was not aware
that contacting a third party about his father’s business would result in a violation. We
are not persuaded by this argument. The no-contact order specifically stated that Alford
was to have no contact with Jim directly, indirectly, or through an intermediary and that
included acts of harassment. Alford was on notice that his false report to Angie’s List
would be a violation of the no-contact order. We therefore affirm the trial court’s
revocation of Alford’s probation and the order that he serve the remaining 309 days of his
previously suspended sentence in the Indiana Department of Correction.
Affirmed.
CRONE, J., and BRADFORD, J., concur.
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