MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                             May 14 2018, 10:44 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ronald K. Smith                                         Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kelvin Lamonte Lampkins,                                May 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A02-1711-CR-2750
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Marianne L.
Appellee-Plaintiff.                                     Vorhees, Judge
                                                        Trial Court Cause No.
                                                        18C01-1410-F2-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018            Page 1 of 11
                                        Statement of the Case
[1]   Kelvin L. Lampkins (“Lampkins”) appeals the revocation of his probation,

      arguing that there was not sufficient evidence to support the revocation and that

      the trial court abused its discretion by ordering him to serve six years of his

      previously suspended eight-year sentence. Finding no error, we affirm the trial

      court’s judgment.


[2]   We affirm.


                                                     Issues
              1. Whether the trial court abused its discretion by revoking
              Lampkins’ probation.

              2. Whether the trial court abused its discretion by ordering
              Lampkins to serve part of his previously suspended sentence.

                                                      Facts
[3]   In October 2014, the State charged Lampkins, under this cause 18C01-1410-F2-

      0001, with Level 2 felony dealing in a narcotic drug; two counts of Level 4

      felony dealing in a narcotic drug; Level 6 felony possession of a controlled

      substance; Class A misdemeanor possession of marijuana; and Level 6 felony

      unlawful possession of a legend drug.1 The State also alleged that he was an

      habitual offender.




      1
       Lampkins’ Level 6 felony possession of a controlled substance and Class A misdemeanor possession of
      marijuana charges were enhanced based on him having a prior drug-related conviction.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018          Page 2 of 11
[4]   While Lampkins was on bond in this case, he was charged, under cause number

      18C01-1412-F6-0061, with committing additional offenses in Delaware County.

      Specifically, he was charged with Level 6 felony resisting law enforcement and

      two counts of Class A misdemeanor possession of a controlled substance.


[5]   In January 2017, Lampkins entered into a plea agreement and pled guilty to

      one of the Level 4 felony dealing in a narcotic drug charges in exchange for the

      dismissal of the remaining counts and habitual offender allegation in this cause

      and the dismissal of charges from cause 18C01-1412-F6-0061.2


[6]   In February 2017, the trial court held a sentencing hearing, during which

      Lampkins presented character witnesses. Lampkins, who was sixty years old at

      the time of sentencing, had multiple convictions in Indiana and other states.

      The trial court specifically noted that Lampkins had three prior drug-related

      convictions, had been incarcerated for each of them, and had failed to take

      advantage of rehabilitative opportunities. The trial court acknowledged that

      Lampkins had pled guilty and noted that his character witnesses, who had

      “vouched for [Lampkins’] character[,]” showed that he had “community

      support” that was important for his rehabilitation. (Tr. Vol. 2 at 20, 21). The

      trial court imposed an eight (8) year sentence, with all eight (8) years suspended

      to supervised probation.




      2
          The plea agreement also provided that an infraction in cause 18C01-1611-IF-34 would be dismissed.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018             Page 3 of 11
[7]   A couple of months later, on May 1, 2017, the State filed a notice of probation

      violation, alleging that Lampkins had violated his probation by committing

      another criminal offense in Marion County. Specifically, the State alleged that

      Lampkins had been “charged in 49G20-1704-F5-015630 with: Count 1:

      Possession of a Narcotic, Level 5 felony and Count 2: Possession of Marijuana,

      Class A Misdemeanor.” (App. Vol. 2 at 112).


[8]   The trial court held a probation revocation hearing on October 2, 2017. During

      the hearing, the State presented testimony from Lampkins’ probation officer,

      Vickie Reed (“Probation Officer Reed”), who testified that Lampkins had been

      charged in Marion County, under cause number 49G20-1704-F5-015630. The

      State also offered certified copies of the charging information (State’s Exhibit 1)

      and the sentencing order (State’s Exhibit 2) from that Marion County cause.


[9]   State’s Exhibit 1 revealed that “Kelvin Lampkins” was charged with Level 5

      felony possession of a narcotic drug and Class A misdemeanor possession of

      marijuana on April 25, 2017, and both charges specifically referred to

      Lampkins’ current Delaware County conviction for “Dealing a Narcotic Drug

      under cause number 18C01-1410-F2-000001” as the basis for enhancing the two

      Marion County charges. (State’s Ex. 1). State’s Exhibit 1 also contained

      Lampkins’ date of birth, race, and gender. The exhibit, however, did not

      contain a complete cause number and listed the cause number as “49G21[.]”

      (State’s Ex. 1). State’s Exhibit 2 contained the full Marion County cause

      number and revealed the following: “Kelvin Lampkins” pled guilty to a lesser-

      included offense of Level 6 felony possession of a narcotic drug; the Class A

      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 4 of 11
       misdemeanor possession of marijuana charge was dismissed; Lampkins was

       sentenced to two years, with one year executed and one year suspended; and

       his sentence was to run consecutively to “18C01-1410-F2-000001[,]” this

       current Delaware County cause. (State’s Ex. 2). When the State moved to

       admit the two exhibits, Lampkins objected, arguing that the charging

       information did not contain a complete cause number and that the sentencing

       order did not contain Lampkins’ date of birth or some other identifying

       information. The trial court overruled the objection, noting that Lampkins’

       argument went “to the weight, not the admissibility.” (Tr. Vol. 2 at 29).


[10]   After the State rested, Lampkins moved for dismissal of the revocation petition,

       arguing that the State’s exhibits were “insufficient.” (Tr. Vol. 2 at 30). The trial

       court disagreed and noted that both of the State’s exhibits referenced the cause

       number from Lampkins’ current Delaware County case. The trial court also

       noted that State’s Exhibit 1, the charging information, contained Lampkins’

       race, gender, and date of birth, and Probation Officer Reed confirmed that

       Lampkins’ date of birth was the same as the date listed on State’s Exhibit 1.

       The trial court also looked at cause number 49G20-1704-F5-015630 in Odyssey

       and took judicial notice that the charging information from that cause

       contained the same cause number as the sentencing order in State’s Exhibit 2.

       The trial court concluded that the “Kelvin Lampkins” who was charged and

       convicted in the Marion County cause was “the same Kelvin Lampkins” who

       was appearing before the trial court for the revocation hearing. (Tr. Vol. 2 at

       31). Accordingly, the trial court determined that Lampkins had violated his


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 5 of 11
       probation by committing a new offense. The trial court revoked Lampkins’

       probation and ordered him to serve six years of his previously suspended eight-

       year sentence.3 Lampkins now appeals.


                                                       Decision
[11]   Lampkins argues that the trial court abused its discretion by: (1) revoking his

       probation; and (2) ordering him to serve six years of his previously suspended

       eight-year sentence. We will address each argument in turn.


       1. Revocation of Probation


[12]   Lampkins challenges the trial court’s determination that he violated probation

       by committing a new offense while on probation.


[13]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). The trial court determines the conditions of probation and may revoke

       probation if the conditions are violated. Id.; see also IND. CODE § 35-38-2-3(a).

       Indeed, violation of a single condition of probation is sufficient to revoke

       probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). The State

       must prove the alleged violation by a preponderance of the evidence. I.C. § 35-

       38-2-3(f).




       3
         During the dispositional hearing, the trial court took judicial notice of the original sentencing hearing. The
       transcript of that sentencing hearing is contained in the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018                 Page 6 of 11
[14]   We review a trial court’s probation violation determination 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. When

       reviewing a trial court’s determination that a probation violation has occurred,

       we consider only the evidence most favorable to the judgment, and we will not

       reweigh the evidence or judge the credibility of the witnesses. Sanders v. State,

       825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied.


[15]   “When a probationer is accused of committing a criminal offense, an arrest

       alone does not warrant the revocation of probation.” Johnson v. State, 692

       N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a criminal

       charge against a defendant does not warrant the revocation of probation.

       Martin v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, when the

       State alleges that the defendant violated probation by committing a new

       criminal offense, the State is required to prove—by a preponderance of the

       evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at

       617.


[16]   Here, the State alleged that Lampkins had violated his probation by committing

       another criminal offense in Marion County. The probation revocation notice

       alleged that Lampkins had been “charged in 49G20-1704-F5-015630 with:

       Count 1: Possession of a Narcotic, Level 5 felony and Count 2: Possession of

       Marijuana, Class A Misdemeanor.” (App. Vol. 2 at 112). During the

       revocation hearing, Probation Officer Reed testified that Lampkins had been

       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 7 of 11
charged in Marion County under cause number 49G20-1704-F5-015630. The

State also admitted certified copies of the charging information and sentencing

order from that Marion County cause—State’s Exhibit 1 and Exhibit 2,

respectively—to show that Lampkins had been charged and convicted of

another crime. State’s Exhibit 1 revealed that Lampkins had been charged with

Level 5 felony possession of a narcotic drug and Class A misdemeanor

possession of marijuana on April 25, 2017. Both charges in the charging

information specifically referred to Lampkins’ current Delaware County

conviction for dealing in a narcotic drug and the current Delaware County

cause number of “18C01-1410-F2-000001[.]” (State’s Ex. 1). State’s Exhibit 1

also contained Lampkins’ date of birth, race, and gender, and Probation Officer

Reed confirmed that Lampkins’ date of birth was the same as the date listed on

State’s Exhibit 1. While State’s Exhibit 1 did not contain a complete cause

number, the trial court—without objection from Lampkins—took judicial

notice of the record in cause number 49G20-1704-F5-015630 and noted that the

charging information contained a complete cause number and that it was the

same as the cause number on the sentencing order in State’s Exhibit 2.

Additionally, State’s Exhibit 2 revealed that, pursuant to Lampkins’ guilty plea

to the lesser-included offense of Level 6 felony possession of a narcotic drug, he

had been convicted in Marion County and that his Marion County sentence in

49G20-1704-F5-015630 was to run consecutively to his current Delaware

County conviction in cause number “18C01-1410-F2-000001[.]” (State’s Ex.

2).



Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 8 of 11
[17]   Lampkins argues that there was not sufficient evidence to support the trial

       court’s revocation of his probation. He does not challenge the admissibility of

       State’s Exhibit 1 or Exhibit 2. Instead, he argues that the State’s exhibits were

       “insufficient to show a violation.” (Lampkins’ Br. 8). The crux of his argument

       is that State’s Exhibit 1 was insufficient to support his revocation because it did

       not contain a full cause number and did not match the complete cause number

       mentioned in the petition to revoke his probation. He acknowledges, however,

       that, under Evidence Rule 201, the trial court took judicial notice of the Marion

       County cause and that it took judicial notice of the charging information that

       contained the full Marion County cause number.


[18]   Lampkins’ argument is nothing more than a reiteration of his sufficiency

       argument to the trial court, which was rejected, and a request to reweigh the

       evidence, which we will not do. See Sanders, 825 N.E.2d at 955. Because the

       evidence was sufficient to show by a preponderance of the evidence that

       Lampkins violated the terms of his probation by committing a new offense in

       Marion County, we affirm the trial court’s revocation of his probation.


       2. Order to Serve Part of Suspended Sentence


[19]   Lampkins also argues that the trial court abused its discretion by ordering him

       to serve six years of his previously suspended eight-year sentence. He contends

       that the trial court’s decision was “unreasonable” and that the trial court should

       have placed him on home detention. (Lampkins’ Br. 10).




       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 9 of 11
[20]   Upon determining that a probationer has violated a condition of probation, the

       trial court may “[o]rder execution of all or part of the sentence that was

       suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).

       “Once a trial court has exercised its grace by ordering probation rather than

       incarceration, the judge should have considerable leeway in deciding how to

       proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial

       courts and sentences were scrutinized too severely on appeal, trial judges might

       be less inclined to order probation to future defendants.” Id. As a result, we

       review a trial court’s sentencing decision from a probation revocation for an

       abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956). An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances. Id.


[21]   The record reveals that the trial court had ample basis for its decision to order

       Lampkins to serve six years of his previously eight-year suspended sentence in

       the Indiana Department of Correction. Most significantly, the trial court—

       when originally sentencing Lampkins—showed tremendous leniency to him

       and imposed a fully-suspended eight-year sentence. Lampkins squandered this

       opportunity and committed another drug-related crime within a few months of

       being put on probation. Furthermore, Lampkins’ criminal history includes

       felony drug-related convictions, such as dealing in cocaine and possession of a

       controlled substance in Indiana in 2005; unlawful possession of cannabis in

       Illinois in 1995; possession of a controlled substance in California in 1990; and

       possession of a narcotic controlled substance in California in 1989. Based on


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018   Page 10 of 11
       the record before us, we conclude that the trial court did not abuse its discretion

       by ordering Lampkins to serve six years of his previously suspended eight-year

       sentence. For the foregoing reasons, we affirm the trial court’s revocation of

       Lampkins’ probation.4


[22]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       4
         Lampkins asserts that he “would analogize the trial court’s decision herein to that of the trial court in the
       case of Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012).” (Lampkins’ Br. 10). Lampkins, however,
       provides no analogy, analysis, nor cogent argument of how Ripps is applicable to support his argument that
       the trial court abused its discretion. Accordingly, he has waived any such argument. See Ind. Appellate Rule
       46(A)(8)(a) (requiring argument be supported by cogent reasoning with citations to authority); Majors v. State,
       773 N.E.2d 231, 235 n.2 (Ind. 2002) (concluding that the defendant had waived arguments not supported by
       cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018              Page 11 of 11
