Opinion
24A-CR-2169
12-17-2024
Raymond Ingram, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ana M. Quirk Muncie, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Delaware Circuit Court The Honorable Judi L. Calhoun, Judge Trial Court Cause No. 18C01-2307-F6-399.
ATTORNEY FOR APPELLANT Ana M. Quirk Muncie, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana.
May and DeBoer, Judges concur.
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Raymond Ingram appeals the trial court's order revoking his probation and ordering him to serve his previously suspended sentence in the Department of Correction ("DOC"). Ingram argues that his due process rights were violated because he was given insufficient notice of certain probation violation allegations and that the trial court, thus, abused its discretion by revoking his probation. We disagree and, accordingly, affirm.
Issue
[¶2] Ingram raises one issue on appeal, which we restate as whether Ingram was given insufficient notice of his probation violation allegations, in violation of due process, such that the trial court abused its discretion by revoking Ingram's probation.
Facts
[¶3] On January 24, 2024, Ingram pleaded guilty to: (1) theft, a Level 6 felony, in this case, Cause No. 18C01-2307-F6-399 ("Cause No. 399"); and (2) intimidation, a Level 6 felony, in Cause No. 18C01-2306-F6-348 ("Cause No. 348"). The trial court ordered Ingram to serve consecutive sentences of: (1) two years in the DOC, all suspended, for the theft offense; and (2) two years in the DOC, with one year suspended to probation, for the intimidation offense. The trial court also ordered Ingram to complete a batterer's intervention program as a condition of his probation in Cause No. 348.
Ingram also admitted to violating the conditions of his probation in Cause No. 18C01-2109-F6-646.
[¶4] On June 11, 2024, the State filed separate petitions alleging that Ingram violated the conditions of his probation in Cause Nos. 399 and 348. The petition regarding Cause No. 399 alleged that Ingram had been charged with two new offenses: theft and criminal trespass, both Class A misdemeanors, and that Ingram had committed "a violation of the Standard Terms and Conditions of Supervised Probation." Appellant's App. Vol. II p. 102. The petition regarding Cause No. 348 alleged that, in addition to the above-described conduct, Ingram failed to report to probation and failed to enroll in a batterer's intervention program.
The petition regarding Cause No. 348 is not included in the record but is available on the Odyssey database.
[¶5] On July 10, 2024, the trial court held a combined fact-finding hearing on both probation violation petitions. Ingram's probation officer, Officer Lindsey Wilmes, testified that Ingram never reported to probation after sentencing. Ingram moved to Ohio, and his only contact with the probation officer was by phone. Because Ingram never reported to probation, the probation officer was unable to go over the probation paperwork with him, and the probation officer was unable to refer him to the batterer's intervention program. Ingram, thus, never completed that program as required. The probation officer opined that Ingram was not a good candidate for probation because she "had him on previous cases and he has never complied." Tr. Vol. II p. 8.
[¶6] The probation officer further testified that Ingram was charged with theft and criminal trespass, Class A misdemeanors, on May 9, 2024. On that date, Muncie Police Department Officer Gabriel Wilmes responded to a "threats call" from a Family Dollar store. Id. at 11. Store employees reported that Ingram shoplifted, and they showed Officer Gabriel Wilmes security footage of Ingram in the store. Ingram had previously been "trespassed" from the store, meaning that his return to the store constituted criminal trespass. Id. at 12.
Officer Gabriel Wilmes is Officer Lindsey Wilmes' husband.
[¶7] The trial court determined that Ingram never reported to probation after sentencing, never completed the batterer's intervention program, and that the State met its burden of proof to show that Ingram committed criminal trespass, a new criminal offense. Accordingly, the trial court determined that Ingram violated the conditions of his probation in both Cause Nos. 399 and 348.
The trial court found that the State did not meet its burden of proof to show that Ingram committed theft.
[¶8] On August 12, 2024, the trial court held a dispositional hearing regarding the sanction for Ingram's probation violations. The trial court revoked Ingram's probation in this case, Cause No. 399, and ordered Ingram to serve 136 days of his suspended sentence in Cause No. 348. Ingram now appeals.
Discussion and Decision
[¶9] Ingram argues that the trial court erred by revoking his probation because he was not given "written notice of the claimed violation[s] of probation," in violation of his due process rights. Appellant's Br. p. 11. We disagree.
[¶10] We review a trial court's sanction for probation violations under the abuse of discretion standard. 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) governs such sanctions and 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. "The requirement that a probationer obey federal, state, and local laws is automatically a condition of probation by operation of law." Luke v. State, 51 N.E.3d 401, 421 (Ind.Ct.App. 2016), trans. denied; Ind. Code § 35-38-2-1(b).
[¶13] Ingram argues that his due process rights were violated. This Court has explained the due process rights applicable in probation revocation proceedings as follows:
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)] (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972))[, trans. denied]. 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.Terrell v. State, 886 N.E.2d 98, 100 (Ind.Ct.App. 2008), trans. denied. The minimum requirements of due process in probation violation cases include "written notice of the claimed violations of probation." Id. And alongside this due process requirement, Indiana Code Section 35-38-2-3(a) provides that a trial court may only revoke probation if the State has filed a petition to revoke probation during the applicable time period.
[¶14] Ingram does not argue that insufficient evidence supports the trial court's finding that he violated the conditions of his probations. Rather, Ingram only argues that his due process rights were violated because he was not given sufficient written notice of the probation violation allegations, and the trial court, thus, abused its discretion by revoking his probation.
[¶15] We reject this argument for several reasons. First, due process rights "'are subject to waiver, and claims are generally waived if raised for the first time on appeal.'" Terpstra v. State, 138 N.E.3d 278, 285-86 (Ind.Ct.App. 2019) (quoting Pigg v. State, 929 N.E.2d 799, 803 (Ind.Ct.App. 2010), trans. denied), trans. denied. Here, Ingram did not argue before the trial court that he was given insufficient notice of the probation violation allegations, nor does he argue fundamental error on appeal. Ingram's due process argument, thus, is waived. See Terpstra, 138 N.E.3d at 286 (holding probationer waived due process challenge to probation revocation by failing to raise due process argument during the revocation proceedings and failing to raise fundamental error on appeal).
[¶16] Second, waiver notwithstanding, Ingram's due process rights were not violated. Ingram argues that the probation violation petitions did not allege that he failed to meet with his probation officer nor that he failed to complete the batterer's intervention program. Both of these allegations, however, were specifically stated in the petition to revoke probation filed in Cause No. 348. The trial court held a combined fact-finding hearing on this petition and that in Cause No. 399. See Washington v. State, 758 N.E.2d 1014, 1017-18 (Ind.Ct.App. 2001) (holding probationer's due process rights were not violated when probation revocation petition adequately stated probation violation allegations). Ingram had sufficient written notice of the probation violation allegations against him.
[¶17] Lastly, the probation violation petitions also alleged that Ingram committed a new criminal offense by committing criminal trespass, and the trial court found that this violation occurred. This finding was alone sufficient for the trial court to revoke Ingram's probation. See Heaton, 984 N.E.2d at 618 (noting that the commission of a new criminal offense is one of the most serious probation violations). The trial court did not abuse its discretion by revoking Ingram's probation.
Conclusion
[¶18] Ingram's due process rights were not violated, and the trial court did not abuse its discretion by revoking his probation. Accordingly, we affirm.
[¶19] Affirmed.
May, J., and DeBoer, J., concur.