Opinion
23A-CR-2711
06-10-2024
Everett Jessup Johnson, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Eric Grzegorski Howard County Public Defender Kokomo, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Amanda Layne Martin-Nelson 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Howard Superior Court The Honorable Brant Perry, Judge Trial Court Cause No. 34D02-2003-F6-627
ATTORNEY FOR APPELLANT
Eric Grzegorski
Howard County Public Defender
Kokomo, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Robert M. Yoke
Deputy Attorney General
Amanda Layne Martin-Nelson
Certified Legal Intern
Indianapolis, Indiana
Judges May and Vaidik concur.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Everett Jessup Johnson, Jr. appeals the revocation of his probation, raising one issue: did the State prove by a preponderance of the evidence he violated conditions of his probation? We conclude the evidence was sufficient to prove both the conditions and the violation.
Facts and Procedural History
[¶2] In 2020, Johnson pleaded guilty to Level 6 felony theft and was sentenced to 910 days with 365 days executed on in-home detention and the remaining 545 days suspended to supervised probation. Johnson was released to probation in this case on September 22, 2022.
Johnson's probation did not begin until after he served his probationary terms in two other cases. See Tr. Vol. 2 at 14.
[¶3] On February 24, 2023, the Howard County Probation Department petitioned to revoke Johnson's suspended sentence for violating certain conditions of his probation. Curt Rawlings, Johnson's probation officer, signed the petition alleging Johnson had violated two probation conditions. First, Johnson violated the condition requiring him to report to probation as directed by failing to report on February 7. Second, Johnson violated the condition requiring him to submit to alcohol and drug testing when ordered by failing to report for a drug screen on February 15. Johnson was arrested on March 1 and held in jail pending disposition.
[¶4] The trial court held a hearing on August 8. Rawlings testified "Johnson failed to report to the probation department on February the 7th . . . of 2023, and then he also failed to report to Avertest . . . on February the 15th of 2023." Id. at 4. Rawlings' attempts to contact Johnson after Johnson failed to report to probation did not succeed. Rawlings said failing to appear at the probation department as directed and keep in contact violated the conditions of Johnson's probation. Rawlings also said it was a requirement of Johnson's probation to go to Avertest for a drug screen when requested. Failing to appear for a drug screen is considered a positive screen. Before this probation violation proceeding, Johnson admitted to violations two times in this case, including a violation for failing to report to probation as directed. See Appellant's App. Vol. 2 at 81, 92. Rawlings did not believe Johnson was "a good fit for continued monitoring on probation" because he has a long history of violations. Johnson testified and addressed the credit time he believed he had not been given in this case.
[¶5] The trial court found Johnson violated the conditions of his probation and ordered him to serve the 545-day suspended sentence in the Howard County Criminal Justice Center.
With credit for time served while awaiting disposition, Johnson had only 103 days remaining to serve.
Sufficient Evidence Supports the Revocation of Johnson's Probation
[¶6] A probation revocation hearing is civil in nature, and the State must prove an alleged probation violation by a preponderance of the evidence. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014); Ind. Code § 35-38-2-3(f) (2015). "When the sufficiency of evidence is at issue, we consider only the evidence most favorable to the judgment-without regard to weight or credibility-and will affirm if 'there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation.'" Murdock, 10 N.E.3d at 1267 (quoting Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)). One violation of a condition of probation is enough to support a decision to revoke. Pierce v. State, 44 N.E.3d 752, 755 (Ind.Ct.App. 2015).
[¶7] Johnson argues the State did not prove he violated conditions of his probation because there "were no rules or conditions of supervised probation filed in this matter to put Johnson on notice of his expectations while on probation." Appellant's Br. at 10. "[T]he law generally requires that if a person is placed on probation, the trial court must provide the defendant a written statement containing the terms and conditions of probation at the sentencing hearing." Gil v. State, 988 N.E.2d 1231, 1234 (Ind.Ct.App. 2013) (citing I.C. §§ 35-38-2-1(a)(1) (2022), 35-38-2-2.3(b)). The purpose of this requirement "is to provide a defendant with prospective notice of the standard of conduct required of him or her while on probation and to prohibit the imposition of additional conditions after sentencing." Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind.Ct.App. 1989) (addressing earlier versions of the statutes). This intent can also be satisfied if the trial court specifies the conditions orally, on the record, in the defendant's presence, and the defendant acknowledges he understands them. Id. A trial court's error in failing to provide a written statement of conditions of probation is harmless under those circumstances. Seals v. State, 700 N.E.2d 1189, 1190-91 (Ind.Ct.App. 1998) (harmless error to revoke probation for failing to report to probation officer where trial court orally informed defendant he was to report to probation officer as directed and defendant indicated he understood the condition).
The State concedes there is no written notice of Johnson's probation conditions in the record, referenced in the CCS, or available in the underlying criminal case. See Appellee's Br. at 10 n.2.
[¶8] Johnson claims he "cannot have violated terms and conditions of probation without proper notice of those terms and conditions" and therefore the State failed to present sufficient evidence of his violation. Appellant's Br. at 10. But Johnson has waived this claim for three reasons. First, Johnson did not provide a record sufficient to support his claim he was never advised of the conditions of his probation, as he did not provide a transcript of his original sentencing hearing. Without reviewing that hearing, we are unable to discern whether Johnson was sufficiently advised of the conditions of his probation to satisfy the statute even in the absence of written conditions of probation. See Miller v. State, 753 N.E.2d 1284, 1287 (Ind. 2001) ("[W]ithout submitting a complete record of the issues for which an appellant claims error, the appellant waives the right to appellate review."). The trial court is presumed to know and follow the applicable law, which here includes the requirement of specifying in the record and advising the defendant of the conditions of probation. Tharpe v. State, 955 N.E.2d 836, 842 (Ind.Ct.App. 2011), trans. denied.
[¶9] Second, Johnson did not object on these grounds in the trial court. Johnson testified but did not allege he was unaware of the conditions of his probation. And his counsel did not make this argument to the trial court. See Johnson v. State, 692 N.E.2d 485, 486-87 (Ind.Ct.App. 1998) (defendant waived claim State's failure to offer the conditions of his probation into evidence constituted error when he did not object at time State offered proof of the violations).
[¶10] And third, Johnson admitted in an earlier probation revocation proceeding in this case he violated his probation by failing to report to probation as directed. Johnson not only failed to raise his alleged lack of notice of the conditions of his probation at the earliest opportunity, but he previously admitted he knew reporting was a condition of his probation.
[¶11] Waiver notwithstanding, the State presented evidence of the conditions of Johnson's probation through Rawlings' testimony. Rawlings testified failing to keep in contact with and appear for probation meetings violated the terms of Johnson's probation, as did failing to appear for a drug screen. Rawlings also testified Johnson failed to report to probation on a specific date or to be in contact thereafter and failed to report for a drug screen as directed. This is sufficient evidence from which the trial court could find by a preponderance of the evidence that reporting to probation and drug testing were conditions of Johnson's probation and he violated those conditions.
Conclusion
[¶12] The State presented sufficient evidence to prove the conditions of Johnson's probation and his violations of those conditions.
[¶13] Affirmed.
May, J., and Vaidik, J., concur.