MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 16 2016, 6:43 am
regarded as precedent or cited before any
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
Jerry T. Drook                                           Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dupree M. Steward,                                       February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1505-CR-405
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-0607-FB-136



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 1 of 7
[1]   Dupree Steward appeals the revocation of his probation, raising two issues on

      appeal:


              I. Did the State present sufficient evidence to support the
              revocation of Steward’s probation?


              II. Did the trial court abuse its discretion in ordering Steward to
              serve the entirety of his previously suspended sentence?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On November 15, 2010, Steward pled guilty to class D felony possession of

      cocaine and class A misdemeanor possession of marijuana. He received an

      aggregate sentence of three years, with one and a half years executed and one

      and half years suspended to probation. The executed portion of Steward’s

      sentence was to be served on home detention, subject to the approval and

      supervision of a community corrections program in either Grant or Marion

      County. In its sentencing order, the trial court gave Steward sixty days within

      which to seek admittance to such a program. If Steward had not begun serving

      his executed sentence on home detention within that time, he was ordered to

      appear before the trial court for review on January 24, 2011. Additionally, at

      the time of his sentencing, Steward received and signed an order imposing

      conditions of probation. In relevant part, those terms provided that Steward

      would not commit another criminal offense, would report to his probation

      officer as directed, would not possess or consume any controlled substances
      Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 2 of 7
      unless prescribed by a physician, and would submit to drug screens as requested

      by his probation officer.


[4]   The Grant County Probation Department filed a petition to revoke Steward’s

      probation on February 4, 2011. The petition alleged that Steward had violated

      his probation by failing to appear for a scheduled meeting with his probation

      officer and by failing to provide his probation officer with an accurate address.

      On March 3, 2011, the Probation Department filed an addendum to the petition

      to revoke in which it alleged that Steward had also violated his probation by

      committing another criminal offense, class A misdemeanor driving while

      suspended. The addendum further alleged that Steward had failed to appear for

      his initial hearing on the new charge and, consequently, a warrant had been

      issued for his arrest.


[5]   The trial court held a fact-finding hearing on the petition to revoke on March

      14, 2011. The trial court found that Steward had violated the terms of his

      sentence and probation “by failing to follow through with Home Detention,

      failing to report for Court review date, failing to report for probation meetings,

      failing to keep his contact information current, failing to maintain contact with

      the Grant County Probation Department, [and] being charged with a new

      criminal offense[.]” Appellant’s Appendix at 27. As a sanction, the trial court

      ordered Steward to serve the executed portion of his sentence in the

      Department of Correction instead of on home detention.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 3 of 7
[6]   After serving the executed portion of his sentence, Steward was released to

      probation in November 2011. Upon his release, Steward’s probation was

      transferred to Allen County. On March 23, 2012, the Probation Department

      filed a petition to revoke Steward’s probation, this time alleging that he had

      violated the terms of his probation by testing positive for marijuana on

      February 14 and March 12, 2012. At a probation violation hearing held on

      April 23, 2012, Steward admitted to the violations and entered into an

      agreement with the trial court whereby he would complete twenty hours of

      community service and a drug and alcohol assessment in return for being

      allowed to continue on probation.


[7]   The Probation Department filed yet another petition to revoke Steward’s

      probation on August 22, 2012, alleging that Steward had again tested positive

      for marijuana. A warrant was issued for his arrest, and when Steward spoke to

      his probation officer on the telephone, he indicated that he would be turning

      himself in. Steward, however, did not do so and ceased contact with the

      Probation Department. On October 1, 2012, the Probation Department filed an

      addendum to the petition to revoke in which it alleged that Steward had

      violated the terms of his probation by failing to report to probation and to a

      drug treatment provider and by missing a drug screen.


[8]   Steward’s whereabouts were unknown until two and a half years later, when he

      was arrested in Allen County and charged with multiple offenses. When

      Steward posted bond and was released in Allen County, he was arrested on the

      outstanding warrant in this case.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 4 of 7
[9]    The trial court conducted a fact-finding hearing on the petition to revoke

       Steward’s probation in this case on May 11, 2015. At that time, the State filed

       another addendum to the petition, alleging that Steward had violated the terms

       of his probation by committing new criminal offenses and by failing to report to

       probation since August 2012. At the hearing, Steward admitted to violating his

       probation. At the conclusion of the hearing, the trial court found that Steward

       had violated his probation by testing positive for marijuana in July 2012 and

       failing to report to probation since August 2012. As a result, the trial court

       revoked Steward’s probation and ordered him to serve the entirety of his

       previously suspended sentence as a sanction. Steward now appeals.


                                      I. Sufficiency of the Evidence


[10]   Steward first 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 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 5 of 7
       condition of probation is sufficient to support revocation. Gosha v. State, 873

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


[11]   In light of Steward’s admission to violating the terms of his probation, we find

       his claim that the evidence was insufficient to support the revocation of his

       probation puzzling, to say the least. Indeed, at the revocation hearing, Steward

       testified, “I was aware that I violated probation because I missed an

       appointment with a new probation officer that I’d received in Fort Wayne.”

       Transcript at 12-13. He further admitted to being aware that a warrant had been

       issued for his arrest and that he ignored his probation officer’s directive to turn

       himself in. This evidence was more than sufficient to support the trial court’s

       finding that Steward violated his probation.


                                                  II. Sanctions


[12]   Steward also argues that the trial court abused its discretion in ordering him to

       serve the entirety of his previously suspended sentence as a sanction for his

       probation violation. We review a trial court’s sentencing decision in a

       probation revocation proceeding for an abuse of discretion. Jones v. State, 838

       N.E.2d 1146, 1148 (Ind. Ct. App. 2005). An abuse of discretion occurs if the

       decision is against the logic and effect of the facts and circumstances before the

       court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a

       trial court has exercised its grace by ordering probation rather than

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

       proceed.” Id. “If the court finds the defendant has violated a condition of his


       Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 6 of 7
       probation at any time before the termination of the probationary period, and the

       petition to revoke is filed within the probationary period, then the court may

       order execution of the sentence that had been suspended.” Gosha, 873 N.E.2d

       at 664; see also Ind. Code § 35-38-2-3(h).


[13]   Here, upon finding that Steward had violated his probation, the trial court

       ordered him to serve the entirety of the previously suspended portion of his

       sentence, i.e., one and a half years. In support of his argument that the trial

       court’s decision was an abuse of discretion, Steward argues that by the time he

       appeared in court on the current probation violation, his probationary period

       had been over for almost two years, and that there was no admissible evidence

       that he committed any crimes during that time. This argument is absurd. It

       was Steward’s own actions in absconding from probation for two and a half

       years that caused the delay in disposing of this matter, and his whereabouts

       became known only after he was arrested for committing multiple offenses.

       The trial court’s decision to impose the entirety of Steward’s previously

       suspended sentence as a sanction for his probation violations was amply

       supported by the record.


[14]   Judgment affirmed.


[15]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016   Page 7 of 7
