MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Mar 23 2020, 9:50 am

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
Paula M. Sauer                                          Curtis T. Hill, Jr.
Danville, Indiana                                       Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Abasifreke Ukpong,                                      March 23, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2347
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Mark A. Smith,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        32D04-1502-F5-8



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020                  Page 1 of 7
                                             Case Summary
[1]   Abasifreke Ukpong appeals the trial court’s imposition of his previously

      suspended sentence after his probation revocation. We affirm.


                                                     Issue
[2]   The issue on appeal is whether the trial court abused its discretion when it

      ordered Ukpong to serve his previously suspended sentence on work release

      following his probation revocation.


                                                    Facts
[3]   On February 5, 2015, Ukpong was charged in Hendricks County with corrupt

      business influence, a Level 5 felony, and counterfeiting, a Level 6 felony.

      Ukpong failed to appear for multiple hearings, including two failures to appear

      due to detainment or incarceration for offenses separate from the present cause:

      January 11, 2016, due to detainment in Blackford County, and May 16, 2016,

      due to incarceration in Texas for credit card fraud for which he served nine

      months in jail.


[4]   Ukpong originally pleaded guilty on March 21, 2016, to corrupt business

      influence, a Level 5 felony, but he failed to appear for the sentencing hearing on

      May 16, 2016, due to his incarceration in Texas. On August 14, 2017, the trial

      court accepted Ukpong’s plea and sentenced him to the Department of

      Correction (“DOC”) for four years, with one year to be executed on work

      release and three years to be served on probation. The trial court ordered his
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020   Page 2 of 7
      sentence to be served consecutively to a misdemeanor sentence in Marion

      County in cause number 49G20-1509-CM-32704 (“CM-32704”). 1


[5]   While on probation, Ukpong was charged with possession of marijuana, a

      Class B misdemeanor. After his arrest, Ukpong contacted his Marion County

      probation officer, but Ukpong failed to notify Hendricks County authorities of

      his arrest. Ukpong claims he did not realize he was required to notify

      Hendricks County authorities of his arrest because his probationary period in

      Hendricks County had not begun.2 On November 26, 2018, the State

      subsequently filed a petition alleging Ukpong violated his probation based on

      his new criminal charge, possession of a controlled substance, and his failure to

      timely notify his probation officer of contact with law enforcement.


[6]   On July 29, 2019, the trial court held an evidentiary hearing wherein Ukpong

      admitted to all three allegations. The trial court revoked his probation and

      imposed Ukpong’s previously suspended sentence to be served on work release.

      The trial court concluded that there was “no benefit in returning” Ukpong to

      probation. Tr. Vol. II p. 12.




      1
       On September 13, 2015, in CM-32704 Ukpong was charged with resisting law enforcement, a Class A
      misdemeanor; disorderly conduct, a Class B misdemeanor; and public intoxication, a Class B misdemeanor.
      Ukpong was sentenced for these crimes on July 28, 2017, and ordered to serve his sentence consecutively to a
      prior Marion County felony conviction for financial deceit in cause number 49G02-1503-F5-7205.
      2
       At the time, Ukpong was serving his probationary period in Marion County for his sentence in case CM-
      32704. Ukpong’s Hendricks County sentence was ordered to be served consecutively with the Marion
      County sentence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020                    Page 3 of 7
[7]   Ukpong filed a motion to correct error, which was subsequently denied. A

      motion for relief from clerical error was filed on September 12, 2019, which the

      trial court granted and issued an amended court order on violation dated

      September 9, 2019. Ukpong now appeals.


                                                  Analysis
[8]   Ukpong argues that the trial court abused its discretion when it ordered Ukpong

      to serve his previously suspended sentence on work release following the

      revocation of his probation. “[A] trial court’s sentencing decisions for

      probation violations are reviewable using the abuse of discretion standard.”

      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs

      where the decision is clearly against the logic and effect of the facts and

      circumstances before the court. Id.


[9]   Probation as an alternative to incarceration is a “matter of grace” and a

      “conditional liberty that is a favor, not a right.” Cox v. State, 706 N.E.2d 547,

      549 (Ind. 1999) (quoting Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)).

      “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.” Votra v. State, 121 N.E.3d 1108, 1112 (Ind. Ct. App. 2019) (quoting

      Prewitt, 878 N.E.2d at 188). “[O]bstacles to revoking an alternative sentence

      may diminish the likelihood of community corrections placements being made

      in the first place.” Cox, 706 N.E.2d at 550.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020   Page 4 of 7
[10]   Indiana Code § 35-38-2-3(h) governs the sanctions the trial court may impose

       when probation is violated. Subsection (h) provides:


               If the court finds that the person has violated a condition at any time
               before termination of the period, and the petition to revoke is filed
               within the probationary period, the court may impose one (1) or
               more of the following sanctions:

                       (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 (1) year beyond the original probationary period.

                       (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).


[11]   Ukpong argues that the trial court abused its discretion because: (1) this was his

       first probation violation; (2) all three allegations were connected with the single

       act of possessing marijuana; (3) the violation did not cause physical harm or

       pecuniary loss; (4) Ukpong admitted the violation; (5) the sentence imposed

       was longer than recommended by his probation officer; and (6) Ukpong

       reasonably believed that he met his reporting obligation by notifying the Marion

       County probation officer.


[12]   In support of his argument, Ukpong points to Ripps v. State, 968 N.E.2d 323

       (Ind. Ct. App. 2012), in which this Court found an abuse of discretion in

       revoking the defendant’s probation. The defendant in Ripps was convicted of

       child molesting, a Class C felony, and violated his probation by committing the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020   Page 5 of 7
       new offense of residing within 1,000 feet of a public park and youth program

       center when he moved into an assisted living facility. The trial court revoked

       the defendant’s probation and ordered him to serve the remainder of his

       sentence in the DOC. This Court found an abuse of discretion because:


               Ripps was sixty-nine years old and suffering from serious health
               issues, including terminal cancer; he was attempting to adhere to
               his probation conditions, as evidenced by his going to the
               sheriff’s office to register his new address; although he was
               initially in violation of the residency restriction, evidence reveals
               he was taking steps to correct the violation by finding a new
               residence; while he did live within 1,000 feet of the public library,
               this was only so by about twenty feet and some ambiguity exists
               in how this distance was measured; and, last, Ripps previously
               served time in prison for a crime that was later vacated as
               violative of our constitutional ex post facto provision.


       Ripps, 968 N.E.2d at 328.


[13]   Ukpong’s case is distinguishable from Ripps. Ukpong has not demonstrated the

       same level of commitment to complying with the terms of his probation. “The

       violation of a single condition of probation is sufficient to revoke probation.”

       Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016) (citing Wilson v. State, 708

       N.E.2d 32, 34 (Ind. Ct. App. 1999)), trans. denied. The conditions of Ukpong’s

       probation required him to obey all laws and to report any contact with law

       enforcement to his probation officer within forty-eight hours. Ukpong not only

       violated his probation by failing to report; he also committed the new criminal



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020   Page 6 of 7
       offense of possession of marijuana. Both violations are more than a technical

       violation of probation.


[14]   Ukpong demonstrated a lack of compliance when he committed the new

       offense of possession of marijuana; and, although Ukpong notified his Marion

       County probation officer of his arrest for possession of marijuana, he failed to

       report the arrest to the probation authorities in Hendricks County. See Terpstra

       v. State, 138 N.E.3d 278, 289-290 (Ind. Ct. App. 2019) (affirming the imposition

       of defendant’s previously suspended sentence where defendant committed a

       new criminal offense and failed to report the arrest). Under these

       circumstances, the trial court did not abuse its discretion.


                                                Conclusion
[15]   Ukpong has not demonstrated that the trial court abused its discretion by

       imposing his previously suspended sentence on work release. We affirm.


[16]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2347 | March 23,2020   Page 7 of 7
