MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Apr 09 2019, 8:59 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rashad Lamar Thompson,                                    April 9, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2154
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause Nos.
                                                          82D03-1603-F4-1458, 82D03-1804-
                                                          F6-3019



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019                       Page 1 of 13
                                             Case Summary
[1]   In this consolidated appeal, Rashad Thompson challenges the revocation of his

      probation in one case and the trial court’s sentencing of him in a separate case.

      He raises two issues on appeal that we restate as:


              I. Whether Thompson’s due process rights were violated because
              the trial court revoked his probation for a reason not alleged in
              the petition to revoke; and


              II. Whether the trial court abused its discretion in sentencing
              Thompson.


[2]   We affirm in part and reverse in part and remand.


                                   Facts & Procedural History
[3]   On March 7, 2016, police conducted a traffic stop of Thompson as he was

      driving his vehicle. Thompson acknowledged that his license was suspended,

      and he was removed from the vehicle and handcuffed. During an ensuing

      search of his vehicle, police discovered a handgun. Thompson then fled from

      the scene. Upon being tackled, Thompson struggled with officers and

      attempted to grab an officer’s handgun. One of the officers sustained bodily

      injury before Thompson was secured.


[4]   For this conduct, the State charged Thompson on March 11, 2016 under Cause

      Number 82D03-1603-F4-1458 (Cause 1458) with: Count I, Level 4 felony

      unlawful possession of a firearm by a serious violent felon; Count II, Level 5

      felony disarming an officer; Count III, Level 5 felony escape; Count IV, Level 6

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 2 of 13
      felony resisting law enforcement; and Count V, Class A misdemeanor resisting

      law enforcement. On June 2, 2016, Thompson entered into a plea agreement in

      which he pled guilty to Counts II and III in exchange for a sentence of six

      years. On August 24, 2016, the trial court sentenced Thompson to six years on

      each of the two convictions, ordering the sentences to run concurrently. The

      trial court ordered that two years be executed and the remaining four years be

      suspended to probation.


[5]   On April 17, 2018, the State filed a petition for revocation of probation, alleging

      one violation:


              That the defendant is in violation of the order of the Court, by
              knowingly failing to appear to sign up for probation.


      Appellant’s Appendix Vol. II at 79. The trial court issued a warrant for

      Thompson’s arrest.


[6]   On April 26, 2018, Thompson was driving in his vehicle and pulled into a gas

      station. Police approached him and told him that he had outstanding warrants.

      Thompson provided false information to the officers, and he refused to exit the

      vehicle when asked to do so. Thompson attempted to drive away and

      eventually crashed into an officer’s vehicle.


[7]   For this conduct, the State charged Thompson on April 30, 2018 under Cause

      Number 82D03-1804-F6-3019 (Cause 3019) with: Count I, Level 6 felony

      attempted resisting law enforcement; Count II, Class B misdemeanor false

      informing; and Count III, Class B misdemeanor criminal mischief. The State

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 3 of 13
      added a habitual offender enhancement on that same day. The matter was

      convened for jury trial on July 19, 2018. After the jurors were sworn and voir

      dire was conducted, Thompson moved for a mistrial, which the trial court

      denied. After the jury was selected, Thompson made a Batson 1 motion, which

      the trial court denied. Thompson then pled guilty to the offenses as charged

      and admitted to being an habitual offender.


[8]   On August 10, 2018, the trial court held a combined hearing in Cause 1458 and

      Cause 3019. Prior to the start of testimony, the prosecutor and the trial court

      had the following exchange concerning the petition to revoke probation in

      Cause 1458:


                 STATE: Uh yes sir there’s as preliminary matter Judge[.] I was
                 looking through my notes and the docket, um, there was a
                 [petition to revoke] that was filed in [Cause]1458, and according
                 to my notes and I didn’t see it on the docket in that case I don’t
                 know that the Defendant actually ever admitted the PTR, um,
                 and I couldn’t find – or I couldn’t find where he had and I just
                 wanted to point that out to the Court preliminarily before the
                 sentencing hearing begins.


                 COURT: Yeah his plea of guilty [in Cause 3019] is an admission
                 that he’s violated the terms and condition of that sentence [in
                 Cause 1458] as he was serving that sentence when this incident
                 occurred so.




      1
          Batson v. Kentucky, 476 U.S. 79 (1986).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 4 of 13
               STATE: Yes sir.


               COURT: I don’t need a formal admission.


       Transcript Vol. II at 18.


[9]    Several times during his testimony, Thompson acknowledged that he had

       missed his probation meeting, which he stated was due to his car not working.

       He maintained that, except for the missed meeting, he had completed all of his

       probation requirements. He explained that, when he got arrested for the Cause

       3019 offenses, he was driving to his attorney’s office to discuss the missed

       probation meeting, attempt to resolve it, and turn himself in to authorities if

       need be. Thompson said that, on his way, he stopped for gas, and when he

       pulled into a gas station, police surrounded him, guns drawn, and told him that

       he had outstanding warrants. Thompson maintained that he was not aggressive

       or violent during the encounter and tried to tell the officers that he had only

       missed a probation meeting. His counsel argued that “but for not making it to

       his attorney’s office[,] . . . we probably wouldn’t be here right now” and “had

       Mr. Thompson not stopped for gas he probably would have been before this

       Court on a petition to revoke after turning himself in at probation.” Id. at 42.

       Counsel asked for leniency in sentencing, noting that Thompson “was in

       complete compliance until the day this happened.” Id.


[10]   The prosecutor, in response, elaborated on the missed probation meeting,

       stating that Thompson was scheduled to appear for a meeting on March 21,

       2018, to go over the rules of probation, but Thompson had called and spoken

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 5 of 13
       with the probation department, who at Thompson’s request, agreed to reset the

       meeting to April 2, 2018. He did not appear for that meeting. On April 17,

       2018, the State filed the petition to revoke, and he was arrested April 26. The

       prosecutor described the encounter when Thompson was arrested, stating that

       police had initiated a traffic stop of Thompson for a traffic infraction,

       Thompson cracked his window and gave a false name, and when he was told to

       exit the vehicle, Thompson rolled up his window, put his car in gear and started

       to drive, running into a deputy’s car, all actions that indicated to officers that

       Thompson was attempting to escape. With regard to sentencing in Cause 3019,

       the prosecutor urged that “in terms of aggravators,” Thompson “has eight prior

       felonies,” “a pattern of resisting law enforcement,” and was on probation at the

       time he committed the offenses in Cause 1458. Id. at 43. The prosecutor also

       advised the court of an outstanding warrant from Davis County, Kentucky

       issued in February 2018 “for first degree assault involving an alleged shooting

       of a person.” Id. The State asked the trial court to impose the entire previously-

       suspended four years in Cause 1458 and impose a seven-year sentence in Cause

       3019, to be served consecutively, for an aggregate term of eleven years.


[11]   At the conclusion of the hearing, the trial court stated that in Cause 1458 “the

       petition to revoke [] is granted” and ordered the four-year previously-suspended

       sentence to be executed. Id. at 46. The court’s written sentencing order more

       specifically stated: “Court now grants revocation for committing a new offense

       in [Cause 3019].” Appellant’s Appendix Vol. II at 99.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 6 of 13
[12]   As to Thompson’s guilty plea in Cause 3019, the trial court sentenced him to

       two years on his conviction for Level 6 felony resisting law enforcement (Count

       I), enhanced by four years for the habitual offender adjudication, and to 180

       days each for Class B misdemeanor false informing and criminal mischief

       (Counts II and III). It ordered the sentences to run concurrent with one another

       but consecutive to the sentence in Cause 1458 for an aggregate sentence of ten

       years. When Thompson asked, “[N]othing suspended at all?”, the trial court

       responded:


               No the record – well you have eight prior felonies, you were on
               probation at the time you did this, you have a pattern. I do agree
               that there’s a number of resisting convictions in the past, you’ve
               had a robbery conviction and other serious felons – felonies so no
               I can’t anymore. We’ve gone as far as we’re going to go.


       Transcript Vol. II at 48. Thompson expressed frustration that he was receiving a

       ten-year sentence “[a]ll for missing my probation meeting,” and the exchange

       with the trial court continued:


               THOMPSON: I did – none of the other stuff count as mitigating
               factors about how I didn’t get in any trouble and I did everything
               no failed drug tests, none of that counts or matters?


               COURT: . . . I took into account those and on those occasions
               when you – your behavior was – was what the law required you
               got credit for that, but here – this situation could have turned
               dangerous and violent very, very easily. Somebody could have
               been seriously hurt this is not acceptable.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 7 of 13
       Id. at 49. Thompson indicated that he wished to appeal, and the court

       appointed counsel to perfect an appeal.


[13]   Thompson thereafter filed a separate notice of appeal under each of the two

       cause numbers, which this court later consolidated upon Thompson’s motion.


                                        Discussion & Decision
                                           I. Probation Revocation

[14]   Probation is a favor granted by the State, not a right to which a criminal

       defendant is entitled. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006).

       Appellate courts review the revocation of a defendant’s probation for an abuse

       of discretion, consider only the evidence most favorable to the trial court’s

       judgment, and do not reweigh evidence or judge the credibility of witnesses.

       Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). We will affirm the decision to

       revoke “[i]f there is substantial evidence of probative value to support the trial

       court’s decision that a defendant has violated any terms of probation[.]” Id. at

       639-40.


[15]   Probation revocation is governed by Ind. Code § 35-38-2-3(a), which provides,

       “The court may revoke a person’s probation if . . . the person has violated a

       condition of probation during the probationary period[.]” Upon the assertion

       by the State that a person has violated a condition of probation, “the court shall

       conduct a hearing concerning the alleged violation.” Ind. Code § 35-38-2-3(d)

       (emphasis added); Gilreath v. State, 748 N.E.2d 919, 921 (Ind. Ct. App. 2001).

       While an individual at a probation revocation hearing does not possess the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 8 of 13
       same rights with which he was endowed prior to a conviction, the due process

       clause of the Fourteenth Amendment does provide certain protections to

       probationers at revocation hearings. J.H. v. State, 857 N.E.2d 429, 432 (Ind. Ct.

       App. 2006), trans. denied. “Those rights include written notice to the

       probationer of the claimed violations.” Hubbard v. State, 683 N.E.2d 618, 622

       (Ind. Ct. App. 1997); see also Washington v. State, 758 N.E.2d 1014, 1017 (Ind.

       Ct. App. 2001) (due process requires that the petition for revocation disclose the

       grounds upon which revocation is being sought).


[16]   This court has repeatedly held that it is error to base revocation upon a

       violation for which the probationer did not receive notice in the petition for

       revocation. See Bovie v. State, 760 N.E.2d 1195, 1199-1200 (Ind. Ct. App. 2002)

       (holding it was error for trial court to base probation revocation upon

       possession of drug paraphernalia when that violation was not listed on the

       Notice of Violation of Probation); Long v. State, 717 N.E.2d 1238, 1240 (Ind. Ct.

       App. 1999) (holding probation could not be revoked based upon an act that was

       similar but not identical to the charged act); Hubbard, 683 N.E.2d at 622

       (finding that because failure to take test for use of alcohol was not set out in

       petition for revocation, it was error for trial court to rely on that basis when

       revoking probation, but error was harmless because, in revoking probation, trial

       court identified other violations that were included in the petition).


[17]   Here, Thompson contends, “The record cannot be more plain: the trial court

       violated [Thompson]’s right to due process under the Fourteenth Amendment

       when it revoked his suspended sentence for reasons not outlined in the petition

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 9 of 13
       to revoke.” Appellant’s Brief at 14. We must agree. In the April 17, 2018

       petition to revoke, the State alleged that Thompson had violated probation by

       “failing to appear to sign up for probation.” Appellant’s Appendix Vol. II at 79.

       On April 27, 2018, the court scheduled a hearing on the alleged violation, i.e.,

       the missed probation meeting, and the hearing was continued and reset several

       times until it was ultimately held in August 2018. Meanwhile, on April 30,

       2018, Thompson was charged with the new offenses, for which he pled guilty in

       July 2018. The petition to revoke was not amended to allege the commission of

       the new offenses as another violation of probation. Thompson’s testimony at

       the August hearing, as well as his exchange with the court concerning his

       revocation and sentence, reflect that he believed his probation was being

       revoked based on the fact that he missed a meeting where he was to sign up for

       probation. Yet, the trial court’s written sentencing order states that it revoked

       Thompson’s probation “for committing a new offense,” which was never

       alleged as a violation of probation. Id. at 99.


[18]   The State urges that any error is harmless given that Thompson acknowledged

       at the hearing that he missed the scheduled meeting, and, thus, the State proved

       the charged violation for which Thompson had received notice in the petition.

       We agree with Thompson, however, that, as the reviewing court, we may not

       determine that the evidence established that Thompson violated probation by

       missing a scheduled probation meeting, a finding not made by the trial court.

       That determination was for the trial court, and we may not assume the role of

       factfinder. Based on the record before us, as well as existing case law, we are


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 10 of 13
       compelled to reverse the revocation of Thompson’s probation and remand with

       instructions to reinstate Thompson’s probation. 2


                                                   II. Sentencing

[19]   Thompson next contends the trial court abused its discretion when it sentenced

       him in Cause 3019. Sentencing decisions rest within the sound discretion of the

       trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218. An abuse of discretion occurs only if the decision is clearly

       against the logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.




       2
         We note that, if the trial court had based revocation on both (1) the missed meeting and (2) commission of a
       new offense, then the court’s reliance on the new offense would have been harmless. See Bussberg v. State, 827
       N.E.2d 37, 44 (Ind. Ct App. 2005) (stating that it was error for trial court to make findings about violations
       that defendant had not received notice for purpose of the revocation hearing, but holding that error was
       harmless because defendant was also found to have violated probation on another basis, having ingested
       methamphetamine, for which he had received notice), trans. denied; Hubbard, 683 N.E.2d at 622 (finding that
       one of four bases identified by trial court to revoke probation was not set out in the petition for revocation
       and that it was error for trial court to rely on that basis, but holding that error was harmless because other
       bases were included in the petition). However, such is not the case here, as the trial court, in revoking
       Thompson’s probation, relied only on the fact that he had committed a new offense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019                   Page 11 of 13
[20]   A trial court is required to provide a sentencing statement that gives a

       “reasonably detailed recitation of the trial court’s reasons for imposing a

       particular sentence” and that identifies all significant aggravating and mitigating

       factors, if any are found, and explains why the court has found them to be such.

       Id. at 490. The purpose of this requirement “is to guard against arbitrary

       sentencing and to provide an adequate basis for appellate review.” Webb v.

       State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011), trans. denied. In reviewing

       sentencing decisions, appellate courts consider both the written and oral

       sentencing statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002); Gleason

       v. State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012).


[21]   Thompson argues that, in sentencing him in Cause 3019, the trial court “never

       articulated the reasons for imposing his sentence – in either the sentencing

       order, or during the oral pronouncement of sentence[.]” Appellant’s Brief at 18.

       We disagree. Although the written sentencing order did not specify the factors

       that the trial court considered, the course of the hearing and the trial court’s

       statements at the hearing reflect that it considered various aggravating and

       mitigating circumstances. At the beginning of the hearing, the court indicated

       that it had reviewed the presentence investigation report. Following the

       presentation of evidence at the hearing, counsel for both parties presented

       argument, with the prosecutor listing Thompson’s various prior convictions,

       including misdemeanor resisting law enforcement convictions, Class D felony

       resisting law enforcement conviction, Level 5 felony disarming a law

       enforcement officer, Level 5 felony escape, Class C felony burglary, Class C


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 12 of 13
       felony possession of an altered handgun, Class C felony robbery, Level 6 felony

       dealing in marijuana, and Level 4 felony for dealing in a narcotic drug.


[22]   Thereafter, when imposing sentence, the trial court verbally identified various

       circumstances that it had considered when determining Thompson’s sentence.

       For instance, the court noted Thompson’s criminal history that included eight

       felonies and the fact that Thompson was on probation when he committed the

       offenses in Cause 3019. The court also considered the nature of the offense,

       opining that the situation could have turned even more dangerous and violent

       than it was and that someone could have been seriously hurt. The trial court

       also told Thompson that it had taken into account – i.e., gave Thompson

       “credit for” – matters that Thompson urged should have been considered as

       mitigating, including passing drug tests. Transcript Vol. II at 49. We find that,

       based on the record before us, the trial court provided Thompson with an

       adequate statement of reasons for imposing the sentence that it did. Thus, the

       trial court did not abuse its discretion in sentencing Thompson in Cause 3019.


[23]   Judgment affirmed in part and reversed in part and remanded.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2154 | April 9, 2019   Page 13 of 13
