Opinion
23A-CR-2875
12-19-2024
Allen L. Calligan, Appellant-Respondent v. State of Indiana, Appellee-Petitioner
APPELLANT PRO SE Allen L. Calligan Carlisle, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Grant Circuit Court The Honorable Mark E. Spitzer, Judge Trial Court Cause No. 27C01-0808-FB-162.
APPELLANT PRO SE Allen L. Calligan Carlisle, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana.
Mathias and Kenworthy, Judges concur.
MEMORANDUM DECISION
Brown, Judge.
[¶1] Allen L. Calligan, a/k/a Allan L. Calligan, appeals the revocation of his probation and the sanction imposed by the trial court. He contends that insufficient evidence supports the trial court's finding that he violated the terms of his probation and that the trial court abused its discretion in ordering him to serve four years of his previously suspended sentence in the Indiana Department of Correction ("DOC"). We affirm in part and dismiss in part.
Facts and Procedural History
[¶2] On August 19, 2008, the State charged Calligan with unlawful possession of a firearm as a class B felony and carrying a handgun without a license as a class C felony under cause number 27C01-0808-FB-162 ("Cause No. 162"). On March 19, 2009, pursuant to a plea agreement, Calligan pled guilty to carrying a handgun without a license as a class C felony in exchange for dismissal of the remaining count and an eight year sentence, with two years executed in the DOC and six years suspended to probation. The court sentenced Calligan in accordance with the agreement.
[¶3] On January 24, 2010, Calligan was released to probation. Less than two months later, on March 5, the State filed a petition to revoke Calligan's probation alleging that he had committed new crimes in violation of the terms and conditions of his probation. Specifically, Calligan was charged in Allen County with domestic battery and interfering with the reporting of a crime as class D felonies.
[¶4] On April 8, 2010, the State filed an amended petition to revoke Calligan's probation alleging that he failed to report to probation on at least three dates. The court held a hearing on April 30, 2010. The State withdrew the alleged violation regarding the commission of new crimes, and Calligan admitted to violating his probation by failing to report. In accordance with an agreement between the parties, the court revoked one year of Calligan's previously suspended sentence followed by a return to probation. Calligan returned to probation on October 6, 2010.
[¶5] On August 17, 2011, Fort Wayne Police Department Officer Eric Thompson conducted a traffic stop of a vehicle driven by Calligan due to its unreadable license plate. During the stop, Calligan exited the vehicle and fled from Officer Thompson. As he fled, Calligan stumbled and dropped a black Taurus .45 caliber handgun, before he was eventually apprehended. The State subsequently charged Calligan with unlawful possession of a firearm by a serious violent felon as a class B felony, resisting law enforcement as a class A misdemeanor, and being an habitual offender under cause number 02D05-1108-FB-187 ("Cause No. 187"). Following a jury trial, Calligan was found guilty of the class B felony and of being an habitual offender. Due to his extensive criminal history, the trial court sentenced him to an aggregate sentence of fifty years.
[¶6] Based upon his conviction for the new criminal offenses in Cause No. 187, the State filed a petition to revoke probation in Cause No. 162. During a hearing on September 21, 2012, Calligan admitted that he violated his probation in Cause No. 162 by committing new offenses. His admission was pursuant to an agreement that the State would "remain mute" regarding the sanction imposed by the trial court for the admitted violation. Transcript Volume II at 38. The trial court revoked Calligan's probation and ordered him to serve four years of his previously suspended six-year sentence in the DOC. The remaining one year of probation was ordered terminated. On December 22, 2023, Calligan filed a motion to file a belated appeal which this Court granted.
Discussion
[¶7] Calligan challenges the sufficiency of the evidence that he violated a condition of probation, and he further challenges the sanction imposed by the trial court. We note that Calligan is proceeding pro se on appeal and is held to the same standard as trained counsel. See Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. To the extent he does not cite to the record or present cogent argument, his claims are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (defendant's contention waived because it was not supported by cogent argument or citation to authority).
[¶8] We review trial court probation violation determinations and sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court has explained that, "[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed" and that, "[i]f this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants." Prewitt, 878 N.E.2d at 188. When reviewing an appeal from the revocation of probation, we consider only the evidence most favorable to the judgment, and we will not reweigh the evidence or judge the credibility of the witnesses. Vernon v. State, 903 N.E.2d 533, 536 (Ind.Ct.App. 2009), trans. denied.
[¶9] First, regarding Calligan's challenge to the sufficiency of the evidence that he violated a condition of his probation, we agree with the State that Calligan is foreclosed from making such a challenge on direct appeal. It is well established that a defendant forfeits the right to challenge a conviction on direct appeal after pleading guilty. See Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009). "Likewise, a probationer may not challenge on direct appeal a finding the probationer violated the conditions of his probation after admitting a violation." Dobrowolski v. State, 186 N.E.3d 1168, 1171 (Ind.Ct.App. 2022) (citing Kirkland v. State, 176 N.E.3d 986, 989 (Ind.Ct.App. 2021)). Rather, such a challenge may only be brought through a petition for post-conviction relief. Id.; see also, e.g., Huffman v. State, 822 N.E.2d 656, 659 (Ind.Ct.App. 2005) (citing Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996)) (noting "the avenue for disputing the validity of a guilty plea can be found in Indiana Post-Conviction Rule 1"); Ind. Post-Conviction Rule 1(a)(5) ("Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims . . . that . . . his probation, parole or conditional release [was] unlawfully revoked . . . may institute at any time a proceeding under this Rule to secure relief."). Because Calligan admitted to violating his probation by committing new crimes, he may not challenge the finding that he violated his probation through a direct appeal but only through the appropriate post-conviction proceedings. Accordingly, we dismiss this portion of his appeal.
[¶10] Regarding Calligan's challenge to the sanction imposed by the trial court, we observe that Ind. Code § 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.
[¶11] As long as the proper procedures have been followed in conducting a probation revocation hearing, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence. Goonen v. State, 705 N.E.2d 209, 212 (Ind.Ct.App. 1999).
[¶12] The record reveals that Calligan has twice admitted to violating his probation in Cause No. 162. Following his first admission, the trial court extended him grace by revoking only one year of his probation. Calligan's admitted second violation involved his conviction of unlawful possession of a firearm by a serious violent felon. Indeed, this was his fifth firearm-related conviction and it occurred while he was released on bond for a separate residential entry case. The serious nature of this violation is significant in light of Calligan's extensive criminal history. Under the circumstances, we cannot say the trial court abused its discretion in ordering Calligan to serve four years of his previously suspended sentence in the DOC.
[¶13] For the foregoing reasons, we dismiss Calligan's challenge to the finding that he violated his probation and we affirm the sanction imposed by the trial court.
[¶14] Affirmed in part and dismissed in part.
Mathias, J., and Kenworthy, J., concur.