MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                    Jan 24 2018, 6:48 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Todd Gregg,                                      January 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1706-CR-1444
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause Nos.
                                                         48C03-1110-FB-1864, 48C03-1205-
                                                         FD-825, 48C03-1110-FC-1948, &
                                                         48C03-1102-FD-261



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018              Page 1 of 8
                                               Case Summary


[1]   Michael Todd Gregg appeals the revocation of his probation under four

      separate causes, resulting in him being returned to the Department of

      Correction (DOC) to serve a substantial aggregate sentence. On appeal, Gregg

      argues that the trial court abused its discretion by admitting hearsay evidence at

      the probation hearing and by ordering him to serve the remainder of his

      previously suspended sentences in the DOC.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On October 27, 2011, the State charged Gregg with Class B felony dealing in

      methamphetamine, Class A misdemeanor resisting law enforcement, and Class

      A misdemeanor possession of marijuana in Cause 48C03-1110-FB-1864 (FB-

      1864). Gregg was found guilty as charged by a jury and sentenced, on April 16,

      2012, to an aggregate term of twenty years in the DOC.


[4]   Thereafter, on June 11, 2012, Gregg entered into a plea agreement with the

      State to resolve pending charges in three other causes. Gregg pled guilty as

      follows: Class D felony receiving stolen property in Cause 48C03-1205-FD-825

      (FD-825); Class D felony nonsupport of a dependent child in Cause 48C03-

      1110-FC-1948 (FC-1948); and Class A misdemeanor resisting law enforcement

      in Cause 48C03-1102-FD-261 (FD-261). That same day, the trial court

      sentenced Gregg to one year in the Madison County Jail, with six months on


      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018   Page 2 of 8
      work release and six months on in-home detention, under FD-261. Under FC-

      1948 and FD-825, Gregg received a three-year suspended sentence to the

      Madison County Jail and a three-year sentence to the DOC suspended to

      probation, respectively. The sentences for all three causes were ordered to be

      served consecutive to the twenty-year sentence imposed under FB-1864.

      Additionally, the sentence under FC-1948 was ordered to be served consecutive

      to the FD-261 and FD-825 sentences.


[5]   In July 2015, Gregg sought modification of his sentence under FB-1864. The

      trial court held a modification hearing and on August 31, 2015, ordered Gregg

      released from the DOC and placed on in-home detention for six months.

      Gregg successfully completed three months of electronic monitoring on

      December 24, 2015. Following another modification hearing on January 25,

      2016, the trial court placed Gregg on formal probation for the remainder of his

      sentence under FB-1864.


[6]   Gregg was arrested on February 9, 2017, and the State filed notices of probation

      violations in all four causes the following day. The State alleged, among other

      things, that Gregg had failed to keep probation informed of his address and had

      used illicit drugs. The notices were later amended to include an allegation that

      Gregg had failed to obey the law and behave well in society, noting the filing of

      new criminal offenses related to dealing methamphetamine.


[7]   The trial court held an evidentiary hearing with respect to the alleged violations

      on May 22, 2017. Tim Buck, Gregg’s probation officer, testified without


      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018   Page 3 of 8
      objection that the probation department conducted a home visit on December

      28, 2016, and learned from the homeowner that Gregg had not resided there for

      at least two weeks. Buck also testified that Gregg submitted to a drug screen on

      February 9, 2017, and tested positive for methamphetamine and cocaine “on

      the stick test.” Transcript at 21. A urine sample was sent to the Witham

      Laboratory for analysis. Over Gregg’s hearsay objection, the laboratory results

      indicating that Gregg tested positive for methamphetamine were admitted into

      evidence through State’s Exhibit 1.


[8]   The bulk of the State’s evidence presented at the hearing came through the

      testimony of three detectives with the Madison County Drug Task Force (Task

      Force). Detective Michael Anderson with the Task Force testified in detail

      regarding a controlled buy that involved Gregg as the target. On January 31,

      2017, Gregg sold 1.6 grams of crystal methamphetamine to a confidential

      informant for $150.


[9]   In addition to the controlled buy, Detectives Keith Gaskill and Matthew

      Guthrie testified regarding a search warrant obtained and executed on February

      16, 2017, at Ryan Roads’s apartment. Gregg had been incarcerated for a week

      at this point, but the Task Force’s continued investigation indicated that Roads

      was holding a substantial amount of methamphetamine and other property for

      Gregg, as well as driving Gregg’s vehicle. Upon executing the search warrant,

      the Task Force found a safe in the kitchen. The safe contained plastic baggies,

      a digital scale, crack cocaine, and about 20 grams of crystal methamphetamine.

      Comingled with this contraband were Gregg’s work identification card with his

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018   Page 4 of 8
       photograph and a bill of sale for an automobile signed by Gregg and dated

       February 1, 2017, along with other personal property. Roads and his live-in

       girlfriend provided consistent statements to police regarding Gregg’s property.

       Roads also eventually admitted that he had secreted a significant amount of

       Gregg’s methamphetamine in a vehicle parked just outside the city. A search of

       the vehicle uncovered more than 200 grams of crystal methamphetamine.


[10]   At the conclusion of the evidence, the trial court determined that Gregg had

       violated the terms of his probation by failing to keep probation advised of his

       current address, failing to abstain from the use of illegal drugs, and committing

       a new criminal offense. After hearing evidence regarding disposition of the

       probation violations, the trial court revoked each of Gregg’s suspended

       sentences and returned him to the DOC to serve the remainder of his twenty-

       six-year aggregate sentence.


                                            Discussion & Decision


                                                      Hearsay


[11]   In a disjointed argument, Gregg contends that the trial court improperly

       admitted hearsay evidence at the probation hearing in violation of his

       confrontation rights. Specifically, he argues that State’s Exhibit 1 – the

       laboratory report/urinalysis from Witham – should not have been admitted.1




       1
        Gregg also complains that Buck was permitted to testify to information obtained from another probation
       officer indicating that Gregg was not residing at his reported residence at the end of December 2016.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018        Page 5 of 8
[12]   We remind Gregg of the well-established law that the Sixth Amendment of the

       United States Constitution does not apply to probation revocation proceedings,

       which are not criminal trials.2 See e.g., Smith v. State, 971 N.E.2d 86, 89 (Ind.

       2012). Rather, a probationer’s right to confrontation arises from general due

       process principles, and the right is satisfied where the hearsay evidence is

       “substantially trustworthy.” Id. at 90.


[13]   Because any error in the admission of State’s Exhibit 1 was harmless, we need

       not determine whether this challenged evidence met the substantial

       trustworthiness test. “Proof of any one violation is sufficient to revoke a

       defendant’s probation.” Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App.

       2010). Here, the bulk of the evidence presented by the State addressed Gregg’s

       dealing in methamphetamine while on probation for dealing in

       methamphetamine. The State established that Gregg sold 1.6 grams of

       methamphetamine to a confidential informant and had access to a substantial

       additional amount of methamphetamine, which he had an associate hold while

       he was in jail. Gregg does not challenge this evidence, which alone supported

       the revocation of probation. We can say with confidence that the trial court

       would have imposed the same sanction had it considered only this most-serious




       However, Gregg did not object to this evidence below on hearsay grounds – or any other grounds for that
       matter – so he may not be heard to complain on appeal. See McQueen v. State, 862 N.E.2d 1237, 1241 (Ind.
       Ct. App. 2007) (failure to object to hearsay evidence admitted at probation hearing waives the issue for
       appellate review).
       2
         Article 1, section 13(a) of the Indiana Constitution, similarly, applies to “criminal prosecutions”, which this
       is not.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018              Page 6 of 8
       violation. See id. (“trial court did nothing to indicate it would have reached a

       different decision had it considered only the two unchallenged violations”).


                                                     Sanction


[14]   Next, Gregg contends that the trial court abused its discretion when it ordered

       execution of the remainder of his aggregate twenty-six year sentence. He

       asserts that an alternative to incarceration, such as community corrections,

       should have been considered.


[15]   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 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 v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

       2007); see also Ind. Code § 35-38-2-3(h).


[16]   The trial court granted great leniency to Gregg when it modified his sentence

       under FB-1864 and released him early to home detention and then probation.

       Gregg squandered that opportunity and within a year returned to dealing drugs.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018   Page 7 of 8
       Notwithstanding the fact that the trial court had other options besides ordering

       full execution of Gregg’s sentences, we cannot say that the trial court acted

       outside its discretion when it ordered him to serve the remainder of his

       previously suspended sentences in the DOC.


[17]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1444 | January 24, 2018   Page 8 of 8
