Joshua Alford v. State of Indiana ( 2012 )


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  • 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
    2
    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
    3
    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.
    4
    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.
    5
    

Document Info

Docket Number: 49A02-1109-CR-816

Filed Date: 4/5/2012

Precedential Status: Precedential

Modified Date: 10/30/2014