MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 26 2019, 8:58 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
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin Moore,                                          September 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1253
        v.                                               Appeal from the Fayette Circuit
                                                         Court
State of Indiana,                                        The Honorable Hubert Branstetter,
Appellee-Plaintiff.                                      Jr.
                                                         Trial Court Cause No.
                                                         21C01-1308-FD-584



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019              Page 1 of 9
                                       Statement of the Case
[1]   Benjamin Moore (“Moore”) appeals the trial court’s order revoking his

      probation. He specifically contends that the trial court violated his right to due

      process by failing to state the specific reason for revoking his probation and that

      there was insufficient evidence to support the revocation. Finding no due

      process violation and sufficient evidence to support the revocation, we affirm

      the trial court’s judgment.


[2]   We affirm.


                                                    Issues
              1.       Whether the trial court violated Moore’s right to due
                       process.

              2.       Whether there is sufficient evidence to support the
                       revocation of Moore’s probation.

                                                     Facts
[3]   In July 2018, Moore pled guilty in Fayette County to Class D felony

      nonsupport of a dependent. The trial court sentenced him to a three-year

      sentence suspended to probation. The terms of Moore’s probation required him

      to pay $75.00 per week in child support, abstain from the use of alcohol and

      drugs, and notify the probation department of a new address within twenty-four

      hours of any change in the address.


[4]   Following his guilty plea, Moore remained incarcerated in the county jail for an

      unrelated parole violation. He was subsequently extradited to and incarcerated

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 2 of 9
      in Kentucky. He was released from the Kentucky jail at the end of August

      2018. Moore returned to Fayette County and contacted the probation

      department in January 2019. On February 11, Moore met with his probation

      officer, who gave him a printout with his picture and address to take to the

      BMV to obtain an identification card. Moore needed the identification card to

      obtain employment. About the same time, Moore obtained a copy of his birth

      certificate, which he also needed to get an identification card.


[5]   In March 2019, the State filed a petition alleging that Moore had violated his

      probation by failing to pay child support, failing a drug screen, and failing to

      advise his probation officer of an address change. At the May 2019 revocation

      hearing, Moore testified that after he had been released from prison in

      Kentucky at the end of August 2018, he had found a job as a landscaper.

      According to Moore, he had fallen off a scaffold after three days on the job and

      had broken his arm. Moore testified that he had contacted the Fayette County

      Probation Department and told a supervisor about the injury, which had

      prevented him from working while in Kentucky. Moore further testified that he

      had returned to Fayette County after the cast had been removed. However,

      according to Moore he had had difficulty finding a job in Fayette County

      because he did not have an identification card and he was homeless. At the

      time of the hearing, Moore still had not obtained an identification card.


[6]   Moore’s probation officer testified that Moore had failed to attend a scheduled

      appointment on February 18. When the probation officer attempted to do a

      home visit on February 25 at Moore’s reported address, the apartment manager

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 3 of 9
      advised him that Moore no longer lived at that address. Moore subsequently

      failed to attend a probation appointment in March 2019. The probation officer

      further testified that Moore had not made any child support payments during

      the course of his probation. When asked whether Moore had reported any

      injuries to the probation department, the probation officer responded that there

      was “no note of it in our system.” (Tr. 6).


[7]   After hearing the evidence, the trial court concluded that “Moore ha[d] violated

      conditions of his probation by failing to pay child support.” (Tr. 23). Moore

      now appeals the revocation of his probation.


                                                  Decision
[8]   Moore argues that: (1) the trial court violated his right to due process; and (2)

      there is insufficient evidence to support the revocation of his probation. We

      address each argument in turn.


      1.      Due Process


[9]   Moore first argues that the trial court violated his right to due process by failing

      to specify the reason for revoking his probation. In support of his argument,

      Moore directs us to Medicus v. State, 664 N.E.2d 1163 (Ind. 1996). Therein, the

      Indiana Supreme Court set forth the procedural and substantive due process

      rights of probationers facing a revocation of probation, which include: (a)

      written notice of the claimed violations; (b) disclosure of the evidence against

      the probationer; (c) an opportunity to be heard and present evidence; (d) the

      right to confront and cross-examine witnesses; (e) a neutral and detached
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 4 of 9
       factfinder; and (f) a written statement of the reasons for revocation. Id. at 1164.

       The Court further explained that “[d]ue process require[d] that the reasons for

       revoking probation be clearly and plainly stated by the sentencing judge not

       merely to give notice of the revocation, but also to facilitate meaningful

       appellate review.” Id.


[10]   In Medicus, the Indiana Supreme Court held that the trial court’s statement that

       “the defendant ha[d] violated his terms of probation” had failed to satisfy due

       process requirements and remanded the case to the trial court for a probation

       revocation statement consistent with due process requirements. Id. at 1165.

       However, the trial court’s statement in Medicus is distinguishable from the trial

       court’s statement in this case. Here, the trial court stated that it was revoking

       Moore’s probation because he “ha[d] violated conditions of his probation by

       failing to pay child support.” (Tr. 23). This statement clearly states the reason

       for the revocation. The trial court did not violate Moore’s due process rights.


       2.      Sufficiency of the Evidence


[11]   Moore also argues that there is insufficient evidence to support the revocation

       of his probation. “Probation is a matter of grace left to trial court discretion,

       not a right to which a criminal defendant is entitled.” Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007). It is within the trial court’s discretion to

       determine the conditions of probation and to revoke probation if those

       conditions are violated. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

       When reviewing an appeal from the revocation of probation, we consider only


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 5 of 9
       the evidence most favorable to the judgment and we will not reweigh the

       evidence or judge the credibility of the witnesses. Sanders v. State, 825 N.E.2d

       952, 954-55 (Ind. Ct. App. 2005), trans. denied. A probation violation need be

       proven only by a preponderance of the evidence. Pittman v. State, 749 N.E.2d

       557, 559 (Ind. Ct. App. 2001), trans. denied.


[12]   “[I]f the condition violated involves a financial obligation, then the probationer

       must be shown to have recklessly, knowingly, or intentionally failed to pay.”

       Smith v. State, 963 N.E.2d 1110, 1113 (Ind. 2012). It is the probationer’s burden

       “to show facts related to an inability to pay and indicating sufficient bona fide

       efforts to pay so as to persuade the trial court that further imprisonment should

       not be ordered.” Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010).


[13]   Here, Moore specifically argues that there is insufficient evidence to support the

       revocation of his probation because there is insufficient evidence that his failure

       to pay child support was reckless, knowing, or intentional. According to

       Moore, he did not pay child support because he was unable to work due to his

       broken arm and lack of an identification card.


[14]   However, Moore’s probation officer testified that there was no notation of

       Moore’s injury in the probation department’s system. The probation officer

       further testified that Moore had the documents necessary to obtain an

       identification card in mid-February but had failed to do so. This evidence,

       which supports the trial court’s determination that Moore recklessly,

       knowingly, or intentionally failed to pay child support, is sufficient to support


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 6 of 9
       the revocation of Moore’s probation. Moore’s argument is simply an invitation

       to reweigh the evidence, which we will not do. See Sanders, 825 N.E.2d at 954-

       55. There is sufficient evidence to support the revocation of Moore’s probation.


[15]   Affirmed.


       Robb, J., dissents with opinion.


       Mathias, concurs.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 7 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Benjamin Moore,                                          Court of Appeals Case No.
                                                                19A-CR-1253
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff,




       Robb, Judge, dissenting.

[16]   I respectfully dissent. First, although the trial court did determine that Moore

       had violated his probation by failing to pay child support, the trial court did not

       state the evidence upon which it relied in making that determination. To meet

       the minimum standards of due process, Medicus requires the trial court to state

       the reason for revocation as well as the evidence relied on. 664 N.E.2d at 1164

       (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Second, this evidentiary

       component is a particularly important requirement in this case, because to find

       a probationer violated a condition of probation containing a financial

       obligation, the State must prove that the probationer recklessly, knowingly, or

       intentionally failed to pay. Ind. Code § 35-38-2-3(g); Mauch v. State, 33 N.E.3d

       387, 391 (Ind. Ct. App. 2015). The majority states that the evidence “supports


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019   Page 8 of 9
       the trial court’s determination that Moore recklessly, knowingly, or

       intentionally failed to pay child support[.]” Slip op. at ¶ 14. However, the trial

       court made no such finding and I believe it was obligated to do so.


[17]   It does not seem to be disputed that Moore has not paid his child support. But

       in the absence of a trial court statement that is sufficient to facilitate meaningful

       review, we are not in a position to say whether or not the evidence supports a

       determination that Moore was able to pay and made insufficient bona fide

       efforts to do so. See Medicus, 664 N.E.2d at 1164. At the very least, I would

       remand for the trial court to enter a proper revocation statement supporting its

       decision.1




       1
         The petition for probation revocation hearing noticed two other violations of probation: that Moore failed a
       drug screen and failed to apprise the probation department of a new address. The State offered no evidence
       at the revocation hearing with respect to the drug screen and although the timing is unclear, Moore testified
       that at some point after returning to Fayette County in January 2019, he was homeless. The majority
       opinion also references missed probation meetings, but that was not alleged in the petition as a reason for
       revocation.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1253 | September 26, 2019                Page 9 of 9
