MEMORANDUM DECISION                                                       FILED
                                                                     Dec 19 2016, 9:10 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                          CLERK
this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
regarded as precedent or cited before any                                  and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana

                                                        Kelly A. Loy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tyrone D. Payton,                                       December 19, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A01-1605-CR-980
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Susan L. Orth,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        22D01-0410-FB-754



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016       Page 1 of 7
                                             Case Summary
[1]   Tyrone Payton appeals the revocation of his probation. We affirm.


                                                    Issues
[2]   Payton raises one issue, which we revise and restate as:


              I.      whether the trial court properly revoked his probation; and

              II.     whether the trial court properly ordered him to serve four
                      years of his previously-suspended sentence.


                                                     Facts
[3]   In 2006, Payton pled guilty to Class B felony conspiracy to commit burglary,

      and he was sentenced to ten years with five years suspended to probation.

      Between 2008 and 2010, the probation department filed three notices of

      probation violation. In 2011, the probation department filed a fourth notice of

      probation violation, and Payton stipulated to violating his probation. The trial

      court extended Payton’s probation by six months. In 2012, the probation

      department filed fifth and sixth notices of probation violation. In 2014, the

      probation department filed a seventh notice of probation violation, and Payton

      again stipulated to violating his probation. The trial court ordered Payton to

      undergo intensive probation with the Floyd County Intensive Probation

      Program (“FLIP”). The probation department filed an eighth notice of

      probation violation in 2015.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 2 of 7
[4]   In July 2015, the probation department filed a ninth notice of probation

      violation, which it later amended and alleged the following violations: (1)

      failing to maintain good behavior; (2) violating a law by committing new

      offenses; (3) failing to report for probation; (4) using alcohol or controlled

      substances not prescribed by a physician; and (5) failing to pay probation fees.

      At the probation revocation hearing, the State presented evidence that Payton:

      (1) failed to report for at least two probation appointments; (2) on December 16,

      2014, he admitted to using marijuana and Lortabs that were not prescribed by a

      doctor; (3) on January 15, 2015, he admitted to using marijuana and

      oxycodone; (4) he failed to attend appointments at LifeSprings; and (5) he was

      charged with additional criminal offenses in July 2015. The additional charges

      were Level 4 felony unlawful possession of a firearm by a serious violent felon,

      Level 5 felony carrying a handgun with a prior felony conviction, Level 5

      felony battery, Level 5 felony obliterating identifying marks on a handgun, and

      Level 6 felony criminal recklessness. During his testimony, Payton admitted

      that he had used illegal drugs, that he had been arrested on new charges, and

      that he had missed probation appointments.


[5]   At the probation revocation hearing, the State sought to admit a file stamped

      copy of the charging information and probable cause affidavit for the new

      offenses. Payton objected based on “hearsay,” but the trial court admitted the

      exhibit “for the purpose of showing that there was an arrest.” Tr. pp. 30-31.

      We note that the exhibit submitted to this court contains only the charging




      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 3 of 7
      information and the first page of the probable cause affidavit. It is unclear

      whether the exhibit admitted at trial included the full probable cause affidavit.


[6]   The trial court found that Payton violated his probation by failing to attend

      probation appointments, using illegal drugs, being charged with new crimes,

      and failing to attend LifeSpring. The trial court revoked Payton’s probation

      and ordered him to serve four years of his previously-suspended sentence.

      Payton now appeals.


                                                  Analysis
                                         I. Probation Revocation

[7]   Payton argues that the trial court erred by revoking his probation. The State

      must prove a violation of probation by a preponderance of the evidence. Dokes

      v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The decision to revoke

      probation lies within the sound discretion of the trial court, and it may revoke

      probation if the conditions thereof are violated. Lamply v. State, 31 N.E.3d

      1034, 1037 (Ind. Ct. App. 2015). We review challenges to the revocation of

      probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d 984, 987 (Ind.

      Ct. App. 2015). A trial court abuses its discretion when its decision is clearly

      against the logic and effect of the facts and circumstances before it. Figures v.

      State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is substantial evidence

      of probative value to support the trial court’s conclusion that a defendant has

      violated any term of probation, we will affirm its decision to revoke probation.

      Id. at 272.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 4 of 7
[8]   Payton’s challenge centers on the trial court’s reliance on the State’s exhibit that

      contained the charging information and probable cause affidavit. Payton

      argued at the revocation hearing that the document contained hearsay and, on

      appeal, notes that the document was not certified. The Indiana Rules of

      Evidence in general and the rules against hearsay in particular do not apply in

      probation revocation proceedings. Ind. Evidence Rule 101(d)(2); Cox v. State,

      706 N.E.2d 547, 550 (Ind. 1999). Our supreme court has held that hearsay

      evidence may be admitted without violating a probationer’s due process rights if

      the hearsay is substantially trustworthy. Smith v. State, 971 N.E.2d 86, 90 (Ind.

      2012); Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). Given the lack of a full

      copy of the probable cause affidavit, it is impossible to determine whether the

      exhibit was substantially trustworthy. We conclude, however, that any error in

      the admission of the exhibit was harmless.


[9]   The violation of a single condition of probation is enough to support a

      probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).

      Payton does not challenge the trial court’s finding that he violated his probation

      by failing to attend probation appointments, using illegal drugs, or failing to

      attend LifeSpring. Those violations were sufficient to support the revocation of

      his probation. See, e.g., Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App.

      2011) (holding that the probationer’s failure to timely report to the probation

      department, by itself, was sufficient to support the revocation of his probation),

      trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 5 of 7
                                                  II. Sentence

[10]   Payton also challenges the trial court’s imposition of four years of his

       previously-suspended sentence. Upon the revocation of probation, the trial

       court may: (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 year beyond the original probationary period; and (3) order

       execution of all or part of the sentence that was suspended at the time of initial

       sentencing. Ind. Code § 35-38-2-3(h). We review a trial court’s sentencing

       decisions for probation violations for an abuse of discretion. Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007).


[11]   Payton argues that, without consideration of his new arrest, the trial court

       would not have imposed four years of his previously-suspended sentence. We

       disagree. Payton has repeatedly violated his probation and was shown

       significant leniency in the past. Despite that leniency, Payton again violated his

       probation by failing to attend probation appointments, using illegal drugs, and

       failing to attend LifeSpring. The trial court did not abuse its discretion by

       imposing four years of the previously-suspended sentence as a result of these

       violations. See, e.g., Jenkins, 956 N.E.2d at 150 (“In light of the current

       violations and Jenkins’ history of probation violations, we cannot say that the

       trial court abused its discretion when it ordered him to serve twelve years of his

       previously suspended sentence.”).




       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 6 of 7
                                                 Conclusion
[12]   The trial court properly revoked Payton’s probation and ordered him to serve

       four years of the previously-suspended sentence. We affirm.


[13]   Affirmed.


       Bailey, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016   Page 7 of 7
