MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               May 17 2018, 8:06 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Curtis T. Hill, Jr.
Logansport, Indiana                                     Attorney General of Indiana

                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Pausides Alayo,                                         May 17, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        09A02-1712-CR-2800
        v.                                              Appeal from the Cass Superior
                                                        Court
State of Indiana,                                       The Honorable Richard A.
Appellee-Plaintiff                                      Maughmer, Judge
                                                        Trial Court Cause No.
                                                        09D02-1404-FB-20



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018           Page 1 of 6
[1]   Pausides Alayo appeals following the revocation of his probation. On appeal,

      Alayo argues that the State’s evidence is insufficient to support the revocation

      of his probation.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Pursuant to a plea agreement, Alayo pled guilty to Class D felony strangulation

      and the State agreed to dismiss four other charges. On June 2, 2014, the trial

      court sentenced Alayo to 910 days, with 776 days suspended to probation. In

      addition to the general terms of probation, Alayo was also required to enroll in

      and successfully complete a domestic violence program “at least thirty days

      prior to [his] calculated termination date,” pay a number of costs and fees, and

      obtain a mental health evaluation and follow any treatment recommendation.

      Appellant’s Appendix Vol. II at 55. In October 2015, the State filed a petition

      alleging Alayo violated his probation after he submitted to a drug screen that

      was positive for methamphetamine. On November 24, 2015, Alayo admitted

      to violating his probation and the court ordered that he serve 120 days of his

      suspended sentence.


[4]   On June 27, 2016, the State filed a second petition alleging Alayo violated his

      probation by (1) failing to complete a domestic violence program, (2) failing to

      pay probation user fees, (3) failing to pay for drug screens, (4) failing to pay

      court costs, (5) failing to pay a public defender fee, and (6) failing to pay the

      drug and alcohol program fee. At an initial hearing on July 15, 2016, the court

      Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018   Page 2 of 6
      emphasized to Alayo that he needed “to start paying on this stuff.” Transcript at

      6.


[5]   At a hearing on January 3, 2017, the State informed the court that Alayo had

      “completed that domestic violence program” and that he had been paying, but

      “he still owes fees.” Id. at 9. The State requested that Alayo’s probation be

      “terminated unsuccessfully and for a judgment to be entered” for unpaid fees.

      Id. When questioned by the court about his ability to pay the fines and costs,

      Alayo stated that he worked painting houses and fixing pipes. Alayo indicated

      to the court that he could pay his costs and fees in “five months.” Id. at 11.

      The court informed Alayo of the amount he owed and continued the matter to

      June 27, 2017.


[6]   On August 8, 2017, the State filed a third probation violation, alleging that

      Alayo violated his probation by committing the offense of battery resulting in

      bodily injury. The court held a fact-finding hearing on the alleged probation

      violations on November 6, 2017. During the hearing, Terry Haney1 with the

      Cass County Probation Department testified that the probation fees had been

      retired, but there was no confirmation in the file that Alayo had completed the

      domestic violence program or whether he had paid the fees associated with the

      drug screens. The court took judicial notice of its own records indicating that

      Alayo had not paid court costs or the public defender fee. With regard to the




      1
          Haney was not the probation officer who had directly worked with Alayo.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018   Page 3 of 6
      commission of a new criminal offense, Haney testified that Alayo pled guilty in

      the Knox City Court to misdemeanor battery resulting in bodily injury and was

      sentenced. At the conclusion of the evidence, the court found that Alayo had

      violated his probation by (1) failing to complete the domestic violence program;

      (2) failing to pay court costs; (3) failing to pay public defender fees; (4) failing to

      pay the drug and alcohol program fee; and (5) committing a new criminal

      offense. The court ordered that Alayo serve 540 days of his suspended sentence

      in the Department of Correction, terminated probation, and entered a judgment

      against him for $468. Alayo now appeals. Additional facts will be provided as

      necessary.


                                          Discussion & Decision


[7]   Alayo argues that the State presented insufficient evidence to support the

      revocation of his probation. A probation revocation hearing is civil in nature,

      and the alleged violation must be proven by the State by a preponderance of the

      evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.

      denied. When reviewing a claim of insufficient evidence to support a trial

      court’s decision to revoke probation, we consider only the evidence most

      favorable to the judgment, and we neither reweigh the evidence nor judge the

      credibility of witnesses. Id. Revocation is appropriate if there is substantial

      evidence of probative value to support the trial court’s conclusion that the

      probationer has violated the terms of probation. Lightcap v. State, 863 N.E.2d

      907, 911 (Ind. Ct. App. 2007). It is well settled that the violation of a single



      Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018   Page 4 of 6
      condition of probation is sufficient to support revocation. Gosha v. State, 873

      N.E.2d 660, 663 (Ind. Ct. App. 2007).


[8]   Alayo argues, and the State concedes, that failure to pay a public defender fee

      cannot, as a matter of law, be grounds for the revocation of probation. See Ind.

      Code § 35-38-2-3(n). We further note that while Haney testified at the

      November 6, 2017 hearing that there was nothing in Alayo’s file indicating he

      had completed the domestic violence program, the State had informed the court

      at the January 3, 2017 hearing, based on information received from Alayo’s

      probation officer, that he had completed such. Despite the court’s erroneous

      reliance on these two findings as a basis for revocation of Alayo’s probation, the

      court’s revocation of probation can still be upheld.


[9]   With regard to Alayo’s failure to pay fines and costs (including fees) required as

      a condition of probation, such is a proper basis for revocation of probation if it

      is shown that the person recklessly, knowingly, or intentionally failed to pay

      and so long as it is not the sole basis for revocation. See I.C. § 35-38-2-3(g), (m).

      The State established that Alayo had been informed of his obligation to pay

      fines and costs and the trial court even continued the matter of probation

      revocation for over five months to provide Alayo with an opportunity to pay

      such. Although Alayo paid his probation fees, he did not pay other fines and

      costs of which he had knowledge. We also note that the court did not base the

      revocation of Alayo’s probation solely on the fact that Alayo did not pay such,

      but also found that Alayo had committed a new criminal offense.



      Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018   Page 5 of 6
[10]   To that end, we disagree with Alayo that there was insufficient evidence to

       support the court’s finding that he had committed another criminal offense.

       Haney testified that Alayo had pled guilty to battery resulting in bodily injury

       and was sentenced to a suspended term. Alayo did not object to Haney’s

       testimony in this regard. And, although the trial court sustained Alayo’s

       objection to the admission of an uncertified copy of the chronological case

       summary for the battery case, Alayo did not object when the court took judicial

       notice of such record. Alayo’s attorney also referenced the sentence handed

       down by the Knox City Court in suggesting to the court a proper sanction for

       the probation violation. Based on the foregoing, we conclude that the State

       presented sufficient evidence to prove by a preponderance of the evidence that

       Alayo committed a new criminal offense while on probation.


[11]   Even if the trial court erred in considering his failure to pay fines and costs,

       Alayo’s commission of a new criminal offense is sufficient by itself to support

       the trial court’s revocation of his probation. Indeed, the violent nature of the

       new offense is similar to the violent nature of the original offense for which

       Alayo was on probation. The trial court did not abuse its discretion in revoking

       Alayo’s probation and ordering that he serve 540 days of his previously

       suspended sentence.


[12]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1712-CR-2800 | May 17, 2018   Page 6 of 6
