Opinion
24A-CR-301
08-19-2024
Shane A. Call, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D05-1710-F4-70
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Shane Call appeals the trial court's order that he serve five years in the Department of Correction ("DOC") as a sanction for his probation violation. Call argues that the trial court violated his due process rights by failing to properly determine whether revocation was appropriate when ordering this sanction. We disagree and, accordingly, affirm.
Issue
[¶2] Call presents one issue on appeal, which we restate as whether the trial court violated his due process rights by failing to properly determine whether revocation was appropriate when sanctioning him for his probation violation.
Facts
[¶3] On February 12, 2018, Call pleaded guilty to child molesting, a Level 4 felony. He was sentenced to twelve years in the Department of Correction ("DOC"), all suspended, with five years suspended to probation. The terms of Call's probation required that he complete one year on the "Allen County Community Control Program" ("control program"), Ex. Vol. p. 5, which is essentially "home detention as a condition of probation," Tr. Vol. II p. 39. The purpose of the control program is to "add an increased level of supervision as [probationers] come out of prison and into the community." Id. at 16.
[¶4] Call completed the control program during his first probationary term; however, on May 19, 2019, the State filed a petition to revoke probation due to Call's unsuccessful termination from his sexual perpetrator treatment program, which was a condition of his probation. The trial court found that Call violated the conditions of his probation, and on August 2, 2019, the trial court modified Call's sentence to twelve years in the DOC with three years executed, and nine years suspended, with five years of supervised probation. Call was given credit time for the year he spent on the control program.
[¶5] Call was released to probation from the DOC, and on August 19, 2020, the State filed a second petition to revoke probation due to Call's failure to register as a sex offender. The trial court found that Call violated the conditions of his probation, and the trial court modified Call's sentence to nine years, with "5 years executed, 4 years suspended, [and] 4 years [on] probation." Appellant's App. Vol. II p. 39.
The order imposing this modified sentence is not included in the record.
[¶6] Call returned to probation from the DOC in November 2023. Call's probation officer, Andrew Davis, informed Call that, because Call was given credit time for his participation in the control program during his first probationary term, Call was required to again participate in the control program during the instant probationary term. Call, however, refused to participate in the control program again because he believed he had already fulfilled that requirement. Officer Davis scheduled an informal adjustment proceeding with the trial court, and the trial court informed Call that his participation in the program was required. Call, however, still refused to participate.
[¶7] The State then, on November 28, 2023, filed its third petition to revoke probation and alleged that Call violated the conditions of his probation by refusing to participate in the control program. The trial court held a hearing on the petition on January 5, 2024. Officer Davis testified that Call violated the conditions of his probation by refusing to participate in the control program.He testified that Call was required to complete the control program again because Call's current probation required completion of the original probation conditions, which included the control program. Call's previous completion of the control program was not sufficient because the control program was "a condition of probation," not "an executed sentence," yet Call was previously awarded credit time for his participation in the control program. Id. at 39. Call's counsel cross-examined Officer Davis, and Call did not present any evidence.
Officer Davis explained that Call had not been required to complete the control program while on his second stint of probation because the State filed the second petition to revoke soon after Call returned to probation that time.
[¶8] The trial court explained that the control program was "a specifically crafted level of supervision for certain offenders as they come from the Department of Correction into [an] electronic monitoring environment, and then ultimately onto probation supervision as we stair step that supervision down." Id. at 43. The control program, thus, was not merely a box to "check." Id. The trial court concluded by stating: "I'll find by a preponderance of the evidence defendant violated terms and conditions of probation as contained in the petition[, and order] your suspended sentence revoked." Id. at 44. The trial court, accordingly, ordered Call to serve five years of his previously suspended sentence. Id. Call now appeals.
Discussion and Decision
[¶9] Call does not challenge the trial court's finding that he violated the conditions of his probation; however, Call argues that the trial court violated his due process rights by failing to properly determine whether revocation was appropriate when sanctioning him. We are not persuaded.
[¶10] We review a trial court's determination regarding sanctions for probation violations for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances or when the trial court misinterprets the law. Id.
[¶11] When a probation violation is alleged, the trial court engages in two functions. Id. "First, the trial court must make a factual determination that a violation of a condition of probation actually occurred." Id. "Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation." Id. Indiana Code Section 35-38-2-3(h) provides:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) 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 (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
[¶12] "While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant's probation violation, which will require a determination of whether the defendant committed a new criminal offense." Heaton, 984 N.E.2d at 618.
[¶13] Discussing the due process rights applicable in probation revocation proceedings, this Court has explained:
Probation revocation implicates a defendant's liberty interest, which entitles him to some procedural due process. [Piper v. State, 770 N.E.2d 880, 882 (Ind.Ct.App. 2002), trans. denied] (citing Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600-2601 (1972)). Because probation revocation does not deprive a defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the full due process rights afforded a defendant in a criminal proceeding. Id.
The minimum requirements of due process include: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. Id. (citing Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604).Terrell v. State, 886 N.E.2d 98, 100-01 (Ind.Ct.App. 2008), trans. denied.
[¶14] Call argues that the trial court violated his due process rights when sanctioning him because "the court moved directly from determining that a violation had occurred to revoking Call's probation" and, in doing so, "ignore[d] the requirement that there be a finding that revocation of probation is warranted." Appellee's Br. p. 8. We conclude that Call's due process rights were not violated.
[¶15] The purpose of the control program here is to maintain heightened supervision of convicted persons, like Call, who are leaving prison and beginning a probationary term. At the hearing, Call argued that he should not have to participate in the control program a second time. Call was given an opportunity to be heard on this argument; the trial court simply disagreed with Call's argument. The trial court found that Call violated the conditions of his probation by failing to participate in the control program.
[¶16] Call argues that the trial court failed to properly determine whether revocation was appropriate when sanctioning him, but it is clear from the record that the trial court based its decision on Call's probation violation, which is his third in this case. Call did not attempt to present any mitigating evidence at the evidentiary hearing to suggest that a sanction short of revocation was appropriate. Based on these circumstances, we conclude that Call's due process rights were not violated. See Vernon v. State, 903 N.E.2d 533, 537 (Ind.Ct.App. 2009) (rejecting probationer's due process argument that trial court "skipped the second step" in probation revocation proceedings by failing to allow mitigating evidence when probationer was given a right to be heard at evidentiary hearing, at which he contested certain allegations, and probationer was not entitled to a second hearing on the appropriate sanction), trans. denied.
Call argues that his probation violation "is about as technical as one can be." Appellant's Br. p. 8. We disagree. Our Supreme Court has described the failure to keep the probation department informed of a current address, failure to obtain a substance abuse evaluation, and failure to verify employment with the probation department as "technical" probation violations. Heaton, 984 N.E.2d at 615. Call's refusal to participate in the year-long control program is far afield from these types of violations.
Conclusion
[¶17] The trial court did not violate Call's due process rights when sanctioning him for his probation violation. Accordingly, we affirm.
[¶18] Affirmed.
Crone, J., and Bradford, J., concur.