                                                                        Mar 31 2015, 10:21 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Derick W. Steel                                           Gregory F. Zoeller
      Deputy Public Defender                                    Attorney General of Indiana
      Kokomo, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jacqueline A. Jackson,                                    March 31, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                34A04-1409-CR-455
              v.                                                Appeal from the Howard Superior
                                                                Court

      State of Indiana,                                         The Honorable William C. Menges,
      Appellee-Plaintiff                                        Jr., Judge

                                                                Cause No. 34D01-1201-FB-30




      Najam, Judge.


                                        Statement of the Case
[1]   Jacqueline Jackson appeals the trial court’s revocation of her probation.

      Jackson raises a single issue for our review, namely, whether the State

      presented sufficient evidence to support the revocation of her probation. We

      reverse.
      Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015                  Page 1 of 9
                                  Facts and Procedural History
[2]   On October 10, 2012, Jackson pleaded guilty to neglect of a dependent, as a

      Class D felony. The trial court sentenced Jackson to 548 days, with eighteen

      days executed and 530 days suspended to probation. One condition of her

      probation read as follows: “Violation of any law (city, state, or federal) is a

      violation of your probation; within forty-eight (48) hours of being arrested or

      charged with a new criminal offense, you must contact your Probation Officer.”

      Appellant’s App. at 30.


[3]   While on probation, on February 19, 2014, Jackson was arrested and charged

      with having committed child molesting in January 2012, before she had been

      sentenced and placed on probation in the instant matter. Jackson did not notify

      her probation officer about her arrest until thirty days later. In the meantime,

      on March 7, 2014, the State filed a notice of probation violation alleging only

      that Jackson did not timely notify her probation officer about her February 19

      arrest.


[4]   On August 28, 2014, the court held a fact-finding hearing on the State’s notice

      of probation violation. Jackson’s probation officer, Jeremie Lovell, testified

      that Jackson did not notify him of the arrest until thirty days after the arrest had

      occurred, and Jackson did not dispute that testimony. Lovell also testified that

      Jackson did not commit a new crime while on probation. Nonetheless, the

      State argued that Jackson was required to notify Lovell “within 48 hours of

      being arrested” regardless of when the alleged offense had occurred. Tr. at 19.

      But Jackson argued that she was only required to notify Lovell of any arrests
      Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015   Page 2 of 9
      arising from criminal offenses she had committed during the probationary term.

      Thus, Jackson alleged that she had not violated her probation.


[5]   At the conclusion of the fact-finding hearing, the trial court found that Jackson

      had violated the condition of her probation as alleged in the State’s notice of

      probation violation. Accordingly, the court revoked Jackson’s probation and

      ordered her to serve 194 days in the Department of Correction. The trial court

      also ordered Jackson to serve an additional 365 days on probation thereafter.

      This appeal ensued.


                                      Discussion and Decision
[6]   On appeal, Jackson contends that the State presented insufficient evidence to

      support her probation revocation. In determining whether there is sufficient

      evidence to support a probation revocation, we use the same standard of review

      as with any other sufficiency matter. Martin v. State, 813 N.E.2d 388, 389 (Ind.

      Ct. App. 2004). We will consider only the evidence most favorable to the State,

      along with the reasonable inferences to be drawn therefrom. Id.


[7]   Jackson contends that, because she allegedly committed the child molesting in

      January 2012, and her probation did not begin until October 2012, she was not

      required to report the February 2014 arrest to Lovell. Again, the relevant

      probation condition provides as follows: “Violation of any law (city, state, or

      federal) is a violation of your probation; within forty-eight (48) hours of being

      arrested or charged with a new criminal offense, you must contact your

      Probation Officer.” Appellant’s App. at 30. In essence, Jackson asserts that,

      Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015   Page 3 of 9
      because she allegedly committed the underlying criminal offense in January

      2012, that alleged offense is not a new criminal offense for purposes of her

      probation agreement, and, as such, the reporting requirement does not apply.


[8]   The State maintains that “[t]he grammatical structure of the probation term

      creates two independent duties—first, to abstain from illegal activity, and

      second, to report any new arrests or charges.” Appellee’s Br. at 6. In other

      words, the State asserts that the reporting requirement is independent of the

      requirement that Jackson abstain from illegal activity. Thus, the State reads the

      reporting requirement to compel Jackson to report any arrests that occur and

      any charges that are brought against her while she is on probation. We cannot

      agree with the State’s reading of the probation condition.


[9]   In conjunction with her guilty plea, Jackson agreed to abide by certain

      probation conditions.1 Our courts have long held that plea agreements are in

      the nature of contracts entered into between the defendant and the State.

      Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008). As such, we look

      to principles of contract law when construing a plea agreement. Id. The

      primary goal of contract interpretation is to give effect to the parties’ intent. Id.

      When the terms of a contract are clear and unambiguous, they are conclusive of

      that intent, and the court will not construe the contract or look to extrinsic




      1
        On October 25, Jackson read and signed a document entitled “Rules of Probation” in open court. Id. at 7.
      While Jackson did not include a copy of the Rules of Probation in her appendix on appeal, the parties do not
      dispute either that the challenged probation condition was included in that agreement or that her plea
      agreement incorporated those rules.

      Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015                         Page 4 of 9
       evidence. Id. at 483. Rather, we will merely apply the contractual provisions.

       Id. Terms of a contract are not ambiguous merely because a controversy exists

       between the parties concerning the proper interpretation of terms. Id. Instead,

       ambiguity will be found in a contract only if reasonable people would find the

       contract subject to more than one construction. Id. We construe any contract

       ambiguity against the party who drafted it, which, in this case, is the State. See,

       e.g., id.


[10]   We agree with Jackson that the probation condition at issue in this case is

       ambiguous. The condition is comprised of two clauses separated by a

       semicolon. A semicolon is used to join two closely related independent clauses.

       See Andrea Lunsford & Robert Connors, The Everyday Writer 204 (1999). The

       two clauses would be independent and unrelated if they had been separated by a

       period.


[11]   The first clause plainly states that Jackson shall not violate any law. The

       second clause required Jackson to contact her probation officer “within forty-

       eight (48) hours of being arrested or charged with a new criminal offense.”

       Appellant’s App. at 30 (emphasis added). Because the second clause is related

       to the first clause, this reporting requirement is not entirely independent, and it

       is reasonable to interpret the second clause to mean that, if the probationer

       violates a law during the probationary period and gets arrested or charged for

       that offense, she must notify the probation officer. Indeed, the term “new

       criminal offense” in the second clause refers to the first clause’s prohibition

       against the violation of any law.

       Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015      Page 5 of 9
[12]   Further, the wording of the second clause renders its meaning ambiguous

       because the phrase “with a new criminal offense” can be read to apply both to

       “being arrested” and “charged” or only to “charged.” In other words, it is

       unclear whether Jackson was required to report any arrest or only an arrest

       arising from a new criminal offense. While a defendant is typically arrested for

       an offense and charged with an offense, it is not unreasonable to read the

       condition here to require notification of an arrest only when the defendant has

       committed a new criminal offense while on probation.2


[13]   We reject the State’s contention that a “new criminal offense” unambiguously

       includes “any crime for which one is first arrested during one’s probationary

       period.” Appellee’s Br. at 8. Webster’s Third New International Dictionary,

       1522 (2002), defines “new” as “having existed . . . but a short time: having

       originated or occurred lately: not early or long in being: RECENT[.]” (Emphasis

       added). Under that definition, a new criminal offense could mean an offense

       that comes to light for the first time during the probationary period. But it

       could just as reasonably mean only an offense that occurs during the

       probationary period, especially given the general rule that to violate one’s

       probation, one must perform some prohibited act, or fail to perform some

       required action, during the period of probation. See, e.g., C.S. v. State, 817

       N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In other words, conditions of




       2
        It has long been established that an arrest alone does not warrant the revocation of probation. Martin, 813
       N.E.2d at 390.

       Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015                          Page 6 of 9
       probation are prospective and do not relate back to a defendant’s conduct prior

       to the probationary period. But under the State’s interpretation of the condition

       here, a prior criminal offense can be deemed a “new criminal offense.” It seems

       illogical for the conditions of a probation order to relate back to conduct that

       occurred prior to the order. Nevertheless, the condition could have been

       unambiguously written to require that Jackson report any arrest, even an arrest

       based on an “old criminal offense” that first manifests itself during the

       probationary period. But it was not.


[14]   Again, we construe any ambiguity against the State. See Valenzuela, 898 N.E.2d

       at 483. Accordingly, we construe the condition of probation at issue here to

       mean that Jackson was only required to notify Lovell of any arrests resulting

       from alleged offenses committed after she began her probation.


[15]   The State did not present sufficient evidence to show that Jackson violated the

       conditions of her probation. We hold that the trial court erred when it revoked

       Jackson’s probation.


[16]   Reversed.


       Mathias, J., concurs.


       Bradford, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015    Page 7 of 9
       Bradford, Judge, dissenting.

[17]   Because I believe that the State presented sufficient evidence to prove that

       Jackson violated the terms of her probation, I respectfully dissent from the

       majority’s conclusion otherwise.


[18]   The terms of Jackson’s probation are as follows: “Violation of any law (city,

       state, or federal) is a violation of your probation; within forty-eight hours of

       being arrested or charged with a new criminal offense, you must contact your

       Probation Officer.” Appellant’s App. p. 30. The language of the probation

       term creates two independent duties—first, to abstain from illegal activity, and

       second, to report any new arrests or charges. Stated differently, the reporting

       requirement is independent of the requirement that Jackson abstain from illegal

       activity. Based upon this requirement, Jackson violated the terms of her

       probation by waiting approximately thirty days to inform her probation officer

       that she had been arrested and charged with a new crime on February 19, 2014.


[19]   Although the underlying criminal actions that are alleged in the new criminal

       charges may have taken place prior to the date that Jackson was placed on

       probation in the instant matter, Jackson was not alleged to have violated the

       terms of her probation by committing a new criminal act. Rather, Jackson was

       alleged to have violated the terms of her probation by failing to comply with the

       requirement that she notify her probation officer within forty-eight hours of


       Court of Appeals of Indiana | Opinion 34A04-1409-CR-455 | March 31, 2015    Page 8 of 9
       being arrested for or charged with a new criminal offense. The specific

       language setting forth the notice requirement, which again is separate from the

       requirement that one not commit a new criminal act, is not specifically limited

       to arrests or charges relating to criminal acts occurring after the probationary

       term began.

[20]           Probation is a matter of grace left to trial court discretion, not a right to
               which a criminal defendant is entitled. The trial court determines the
               conditions of probation and may revoke probation if the conditions are
               violated. 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. If this discretion
               were not afforded to trial courts and sentences were scrutinized too
               severely on appeal, trial judges might be less inclined to order
               probation to future defendants.


       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks

       omitted). A condition of probation which requires a probationer to notify her

       probation officer upon arrest or being charged with a new criminal offense

       serves the State’s legitimate interest in monitoring and supervising a

       probationer. Based upon a fair and plain reading of the probation condition

       that is at issue in this case, the State presented sufficient evidence to prove that

       Jackson had violated the terms of her probation by failing to notify her

       probation officer within forty-eight hours of being arrested for and charged with

       child molesting. Accordingly, I would therefore vote to affirm the judgment of

       the trial court.




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