Opinion
24A-CR-491
07-31-2024
Michael G. Monday, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Madison Crawford Certified Legal Intern Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Angela Warner Sims, Judge Trial Court Cause Nos. 48C01-1901-F6-99, 48C01-1903-F6-573, 48C01-1909-F6-2255
ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Madison Crawford Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] On appeal from an order revoking his probation, Michael G. Monday challenges the sufficiency of the evidence to support the probation violation. We affirm.
Facts and Procedural History
[¶2] In June 2018, the State charged Monday with level 4 felony unlawful possession of a firearm by a serious violent felon, level 6 felony domestic battery, level 6 felony intimidation, and level 6 felony pointing a firearm under cause number 48C01-1806-F4-1628. Appellant's App. Vol. 2 at 118-22. In January 2019, the State charged Monday with level 6 felony unlawful possession of a syringe and class B misdemeanor false informing under cause number 48C01-1901-F6-99. Id. at 45-46. In March 2019, the State charged Monday with level 6 felony operating a vehicle as a habitual traffic offender and class C misdemeanor possession of paraphernalia under cause number 48C01-1903-F6-573. Id. at 62-63. In September 2019, the State charged Monday with level 6 felony possession of methamphetamine, level 6 felony unlawful possession or use of a legend drug, class A misdemeanor possession of a controlled substance, and class C misdemeanor possession of paraphernalia under cause number 48C01-1909-F6-2255. Id. at 79-82.
[¶3] Monday and the State resolved all four of his pending cases in a global plea agreement in December 2019. Id. at 137-40. Monday agreed to plead guilty to level 4 felony unlawful possession of a firearm by a serious violent felon in cause number F4-1628; level 6 felony unlawful possession of a syringe in cause number F6-99; level 6 felony operating a vehicle as a habitual traffic offender and class C misdemeanor possession of paraphernalia in cause number F6-573; and level 6 felony possession of methamphetamine, level 6 felony unlawful possession or use of a legend drug, and class A misdemeanor possession of a controlled substance in cause number F6-2255. Id. at 138. In January 2020, the trial court sentenced Monday to six years in prison in cause number F4-1628, 730 days with 700 days suspended in cause number F6-573, 730 days with 724 days suspended in cause number F6-99, and 730 days suspended in cause number F6-2255. Id. at 141-42, 147-48, 153-54. It ordered all four sentences to be served consecutively. Id.
Monday's criminal history includes misdemeanor convictions for disorderly conduct, driving while intoxicated, leaving the scene of an accident, two instances of operating a vehicle while intoxicated, public intoxication, and marijuana possession. Appellant's App. Vol. 2 at 109. His felony convictions include battery resulting in serious bodily injury, criminal confinement, dealing in controlled substances, marijuana dealing, maintaining a common nuisance, two instances of operating a vehicle while intoxicated, operating a vehicle while a habitual traffic violator, and marijuana possession. Id.
[¶4] On the morning of July 30, 2023, which was "[c]lear and sunny," Deputy Ryan Nasby was dispatched to investigate a report of a white SUV driving erratically on eastbound Interstate 70 in Hancock County. Tr. Vol. 2 at 22-23, 25. Deputy Nasby observed the SUV, pulled his police vehicle behind it, saw that the SUV "failed to signal lane changes and . . . made an unsafe lane movement almost striking a vehicle." Id. at 23. Accordingly, the officer activated his vehicle's emergency lights to initiate a traffic stop. Rather than pull over, the SUV switched lanes and sped away for approximately twenty miles as the police vehicle followed. Id. Eventually, at least six officers responded to the situation. Id. at 25. Not until an officer deployed stop sticks did the SUV come to a rest on an exit ramp. Id. at 24. Monday exited the SUV and informed the officers that there were two black males in the SUV and that they had held him at gunpoint as he drove. Id. The responding officers "cleared" the SUV and found no occupants in it. Id. at 25. Deputy Nasby had not seen anyone exit Monday's SUV during the twenty-mile pursuit. The State charged Monday with resisting law enforcement under cause number 30D02-2307-F6-1262. Appellant's App. Vol. 2 at 163.
[¶5] In August 2023, the State filed a notice of probation violation in cause numbers F6-99, F6-573, and F6-2255 alleging that Monday had committed level 6 felony resisting law enforcement on July 30, 2023. Id. at 163-65. In January 2024, the trial court held a contested hearing and found that Monday had violated probation by committing the new criminal offense. Id. at 41-43. The trial court revoked Monday's probation under cause numbers F6-99 and F6-2255 and returned him to probation under cause number F6-573. Id. It sanctioned Monday to serve 365 days under cause number F6-99 and 730 days under cause number F6-2255 in the Indiana Department of Correction. Id. Monday filed a notice of appeal in February 2024 and filed his appellant's brief in early May.
The State filed additional allegations of probation violations in F6-99, but the trial court declined to make findings regarding those violations. Tr. Vol. 2 at 39.
Our review of the Odyssey case management system reveals that in late May 2024, Monday admitted that he committed resisting law enforcement on July 30, 2023, and pled guilty to resisting law enforcement under F6-1262. He received a sentence of jail time totaling 612 days plus a 180-day driver's license suspension.
Discussion and Decision
[¶6] "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Probation revocation is accomplished by a two-step process. Parker v. State, 676 N.E.2d 1083, 1085 (Ind.Ct.App. 1997). First, the court makes a factual determination that a violation of a condition of probation actually occurred. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972)). If the court finds a violation, then the court moves to the second step, determining the appropriate sanction for the violation. Pierce v. State, 44 N.E.3d 752, 755 (Ind.Ct.App. 2015).
[¶7] Indiana Code Section 35-38-2-3 outlines due process requirements for probation revocation, including a hearing, representation, and cross examination. Because probation hearings are civil in nature, the State must prove the alleged violations by a preponderance of the evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). That is, the State must show only that the defendant more likely than not violated a condition of probation. See Fry v. State, 990 N.E.2d 429, 448 (Ind. 2013) (explaining that preponderance standard is lower than beyond a reasonable doubt). When reviewing insufficiency claims in the probation setting, we consider only the evidence most favorable to the judgment, without regard to weight or credibility, and affirm if substantial evidence of probative value supports the trial court's conclusion that a probationer has violated any condition of probation. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[¶8] A person who knowingly or intentionally uses a vehicle to flee "from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself and ordered the person to stop" commits level 6 felony resisting law enforcement. Ind. Code § 35-44.1-3-1(a)(3), -(c)(1)(A). In challenging the sufficiency of the evidence to support his probation revocation, Monday does not dispute his awareness of the police vehicle with flashing lights that was traveling behind his SUV. See Tr. Vol. 2 at 33 ("I seen the law[.]"). Rather, Monday asks us to hold that "only willful violations provide a proper basis for probation revocation." Appellant's Br. at 9. Monday contends that his violation was not willful because "he had been car jacked or abducted by two armed" black males and "believed [that] his abductors were still in his car." Id.; Tr. Vol. 2 at 24. He maintains that "duress" caused him to drive erratically, speed, and ignore police vehicles with emergency lights activated.
[¶9] We do not disagree that "the duress defense may be asserted by probationers who violate terms of probation[.]" Hensley v. State, 583 N.E.2d 758, 761 (Ind.Ct.App. 1991). However, the "duress defense is not intended to be given a broad reading" but is "only allowed where the prohibited conduct is compelled by threat of imminent serious bodily injury." Early v. State, 482 N.E.2d 256, 258 (Ind. 1985) (citing Ind. Code § 35-41-3-8). The problem with Monday's argument is that his testimony provides the only support for his version of events. Weighing against his version is the fact that when the stop sticks halted his SUV, no one was in the SUV except Monday. Tr. Vol. 2 at 25. Moreover, Deputy Nasby, who followed Monday's SUV for approximately twenty miles before it stopped, testified that he saw no one exit the vehicle during those twenty miles. The stop occurred around 10:42 a.m. on a clear and sunny day, which also cuts against the notion that somehow Monday might not have seen or realized that he was the only occupant of his SUV.
[¶10] Monday seems to imply that because no contraband was found in his SUV and no active warrants for him existed, there was no reason for him to evade a traffic stop - other than if he believed that armed persons were in his SUV. This assertion ignores the real prospect that he faced probation revocation if found to have committed a new offense, which could very well have incentivized him to flee after his erratic driving. Given the evidence presented, the trial court easily could have found that Monday's story strained credulity and was simply selfserving. From our vantage point on appeal, we may not reweigh evidence or judge credibility. Concluding that substantial evidence of probative value supports the conclusion that Monday violated probation by committing the new offense of resisting law enforcement, we affirm.
[¶11] Affirmed.
Bradford, J., and Tavitas, J., concur.