MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be                                         Oct 17 2019, 9:11 am
regarded as precedent or cited before any                                             CLERK
court except for the purpose of establishing                                      Indiana Supreme Court
                                                                                     Court of Appeals
the defense of res judicata, collateral                                                and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick Magrath                                          Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Chandra Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William C. Turner,                                       October 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-660
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff.                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1412-F5-856



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019                      Page 1 of 11
                                             Case Summary
[1]   William C. Turner appeals the trial court’s revocation of his probation and

      imposition of a 795-day portion of his 1,345-day previously suspended sentence.

      We affirm.


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

      revoked Turner’s probation for an alleged “technical violation” and imposed a

      portion of Turner’s 1,345-day-previously-suspended sentence.


                                                     Facts
[3]   On December 16, 2014, the State charged Turner with operating a motor

      vehicle after lifetime forfeiture of his operator’s license, a Level 5 felony, in

      Decatur County. The State also alleged that Turner was a habitual offender.

      On August 23, 2017, Turner pleaded guilty, pursuant to a plea agreement, to

      operating a motor vehicle after lifetime forfeiture of his operator’s license, a

      Level 5 felony, and admitted to being a habitual offender.


[4]   The trial court sentenced Turner to 1,095 days for operating a motor vehicle

      after forfeiture of license for life and enhanced that term by 730 days because

      Turner was a habitual offender, for a total of 1,825 days (or five years) in the

      Department of Correction (“DOC”). The trial court then ordered 730 days to

      be executed in the DOC and 1,095 days suspended to probation, with 545 days




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 2 of 11
      subject to home detention. 1 Turner was eligible to seek a sentence

      modification.


[5]   At his sentencing, Turner received written conditions of probation. The trial

      court’s sentencing order and its “order for probation with home detention

      condition” each included the following pertinent “conditions of probation”:


                 1.    [Turner] must immediately make an appointment to meet
                 with his probation officer at the Decatur County Probation
                 Department. Failure to report will result in a warrant for
                 [Turner]’s arrest. Thereafter, [Turner] must report to his
                 probation officer as directed.


                                                         *****


                 4.    [Turner] must pay probation administrative fees and
                 probation user fees as follows: (a) Felony convictions: $100.00
                 probation administration fee, $100.00 initial probation user fee,
                 and $30.00 for each month of probation; and (b) Misdemeanor
                 convictions: $50.00 probation administration fee, $50.00 initial
                 probation user fee, and $20.00 for each month of probation.


                 5.    [ ] [Turner] must answer all reasonable inquires [sic] of his
                 probation officer.


                                                         *****




      1
          Turner’s sentence was ordered to be served consecutively to his sentence in a separate cause.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019                     Page 3 of 11
              If [Turner] violates a condition of probation during the
              probationary period, a petition to revoke probation may be
              filed[.]


      Appellant’s App. Vol. II pp. 45-46.


[6]   On November 30, 2017, Turner moved for a sentence modification and asked

      the trial court to change the home detention portion of his sentence to

      probation. The trial court ordered the DOC to prepare a conduct report. After

      a hearing, the trial court granted Turner’s sentence modification on April 13,

      2018, and ordered:


              B.    [Turner] was sentenced to 1,825 days in the I.D.O.C. with
              730 days executed and the remaining 1,095 days suspended.


              C.    [Turner]’s sentence is modified to 1,825 days in the
              I.D.O.C. with 480 days executed at the I.D.O.C. and 1,345 days
              suspended to probation with 545 days on electronically-
              monitored home detention. The Court’s intention is for the
              [Turner]’s executed sentence to be reduced by 250 days.


      Id. at 65. The effect of the sentence modification was Turner’s early release

      from the DOC to begin serving 1,345 days on probation, with 545 days of the

      probation term to be served on home detention.


[7]   Turner was released from the DOC on April 17, 2018, and his probation was

      scheduled to begin that day. That day, Turner paid a $75.00 probation transfer

      fee to transfer his probation to Shelby County, his home county. On May 21,

      2018, Turner met with Brittany Berkley of the Decatur County probation


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 4 of 11
      department. Berkley requested documentation of Turner’s Social Security

      disability benefits. The Decatur County probation department was unable to

      transfer Turner’s home detention sentence to Shelby County because Turner

      failed to supply the requisite paperwork for approval. The Decatur County

      probation department attempted to reach Turner but was unable to contact him

      after May 21, 2018. Turner did not report to probation in either county.

      Decatur County community corrections was also unable to contact Turner; as a

      result, Turner never began home detention.


[8]   On June 15, 2018, the State filed a petition to revoke Turner’s probation in

      which the State alleged: “[ ] Mr. Turner has not reported to Probation, he has

      failed to pay any fees and has failed to start/complete his 40 hours of

      Community Service work. Mr. Turner also has failed to begin his Home

      Detention[,] and Community Corrections has not been able to make contact

      with Mr. Turner.” Id. at 66. The trial court issued a bench warrant for Turner’s

      arrest that same day. On September 4, 2018, Turner was arrested on the

      outstanding warrant as well as for battery on a public safety officer due to an

      incident during his arrest.


[9]   On February 20, 2019, the trial court conducted a probation revocation hearing.

      Decatur County probation officer Timothy Sutton testified to the foregoing

      facts. Sutton also testified that: (1) Sutton was assigned to serve as Turner’s

      probation officer; (2) Sutton never met Turner because Turner failed to report

      for his initial probation appointment and never reported to probation; (3)

      Turner failed to supply necessary documentation to facilitate his desired

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 5 of 11
       probation transfer to Shelby County; and (4) to Sutton’s knowledge, neither the

       Decatur County probation department nor community corrections had any

       contact with Turner after May 21, 2018, as “attempts to make contact with

       [Turner] were unsuccessful.” Tr. Vol. II p. 5.


[10]   Turner testified that, during his contacts with the Decatur and Shelby County

       probation departments, “[he] called these people every day[,]” and “[he] kept

       getting the runaround[,]” and that the State filed the petition to revoke his

       probation while he was still awaiting his disability benefits paperwork. Id. at 9.

       In its order of February 21, 2019, the trial court revoked 795 days of Turner’s

       1,345-day previously suspended sentence and terminated the remainder of his

       probation; Turner was ordered to serve the 795 days in the DOC. Turner now

       appeals.


                                                   Analysis
[11]   Turner argues that the trial court abused its discretion when it revoked his

       probation for a technical violation and imposed a portion of his previously

       suspended sentence. Turner argues that he “had no intention to violate his

       probation and only ran afoul of a technical violation by not taking the initiative

       to check in with Shelby County [ ] earlier.” Turner’s Br. p. 12. The State

       counters that “[Turner] took advantage of the court’s grace when he failed to

       contact both probation offices for weeks before a warrant was issued and [for][ ]

       three months afterwards before he was finally arrested.” Appellee’s Br. p. 7.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 6 of 11
[12]   Probation serves as an “alternative[ ] to commitment to the Department of

       Correction[,]” and is “[granted] at the sole discretion of the trial court.” Cox v.

       State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. “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 v. State, 878

       N.E.2d 184, 188 (Ind. 2007)).


[13]   A trial court determines the conditions of probation and may revoke probation

       if the conditions are violated. Id.; see also Ind. Code § 35-38-2-3(a). 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). Upon determining that a probationer

       has violated a condition of probation, the trial court may “[o]rder execution of

       all or part of the sentence that was suspended at the time of initial sentencing.”

       I.C. § 35-38-2-3(h)(3); see Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.

       2017) (finding the trial court did not abuse its discretion in ordering probationer

       to serve his previously suspended sentence after the trial court revoked the

       probationer’s probation).


[14]   When reviewing the sufficiency of the evidence to support a probation

       revocation, we consider only the evidence most favorable to the judgment

       without reweighing the evidence or judging witnesses’ credibility. Figures v.

       State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010). A probation revocation

       hearing is civil in nature, and the State’s burden is to prove the alleged

       violations by a preponderance of the evidence. Id. “If there is substantial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 7 of 11
       evidence of probative value to support the trial court’s conclusion that a

       defendant has violated any terms of probation, we will affirm its decision to

       revoke probation.” Id. Our Supreme Court has held that “a trial court’s

       sentencing decisions for probation violations are reviewable using the abuse of

       discretion standard.” Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs

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

       circumstances before the court. Id.


[15]   Turner argues that the trial court erred by revoking his probation for his

       technical violation and, in support of his position, invokes Johnson v. State, 62

       N.E.3d 1224 (Ind. Ct. App. 2016). See Turner’s Br. p. 10. In Johnson,

       notwithstanding a mentally-challenged offender’s seventeen-month stint on

       probation without committing a known violation, the trial court revoked the

       offender’s community corrections placement upon a finding that the offender

       strayed beyond certain boundaries 2 and deviated by approximately three hours

       from the prescribed schedule for an authorized errand.


[16]   In reversing the trial court’s judgment, we found that the evidence “supported

       the trial court’s finding that the offender violated the term of his community

       corrections placement that he [should] not leave his apartment and its decision

       to revoke the placement”; however, we also found:




       2
           Johnson strayed from the interior living area of his apartment, but he did not leave his apartment building.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019                      Page 8 of 11
               . . . under the circumstances reflected in the record, including the
               level of Johnson’s functioning and his resources, his previous
               successful placement on work release, the nature of the violation,
               and the severity of the court’s sentence, [that] the trial court
               abused its discretion in finding that Johnson’s sentence
               warranted serving the entirety of the remaining portion of his
               executed sentence in the DOC.


       Id. at 1231. In Johnson, we expressed distaste for the imposition of the entirety

       of an offender’s previously suspended sentence for a minor, technical violation

       of the conditions of probation. To that end, Johnson is a very narrow holding

       and is inapplicable to the facts of this case.


[17]   The record here supports the trial court’s finding, which Turner does not deny,

       that Turner failed to report to probation. Turner’s violation is not comparable

       to what we deemed to be minor, technical violations in Johnson. In Johnson, the

       offender committed violations as he attempted to comply with the rules of his

       probation, i.e., leaving the confines of his apartment, but not leaving his

       apartment building, and leaving his apartment three hours early for an

       authorized errand. As the State argues, Turner displayed a lack of interest “in

       complying with the simplest probation term—to report to his probation

       officer[.]” See Appellee’s Br. p. 8. Turner never reported for probation, never

       met or even tried to contact his probation officer, and never made contact with

       community corrections. Coupled with the knowledge that this was not

       Turner’s first time on probation or home detention, we cannot find that

       Turner’s failure to report to both probation and community corrections was a

       minor, technical violation.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 9 of 11
[18]   To the extent that Turner claims that he is not to blame for his failure to report

       to probation, we note that the trial court weighed his testimony and that of

       probation officer Sutton and deemed Sutton to be more “credible.” See Tr. Vol.

       II p. 13. Our standard of review precludes us from reweighing the evidence or

       re-judging witnesses’ credibility. See Figures, 920 N.E.2d at 272. The trial

       court’s revocation of Turner’s probation is supported by substantial evidence.


[19]   Moreover, unlike the trial court in Johnson, which ordered Johnson to serve the

       entirety of his previously suspended sentence as a probation revocation

       sanction, the trial court here ordered Turner to serve only a 795-day portion of

       his 1,345-day-previously-suspended sentence. See Tr. Vol. II p. 16. This is not

       unduly harsh, given that—as Turner acknowledges—the trial court initially

       extended considerable grace to Turner in “releas[ing] him from incarceration

       early, instead of reducing his home detention time,” as Turner requested in his

       request for sentence modification. See I.C. § 35-38-2-3(h)(3) (Upon determining

       that a probationer has violated a condition of probation, the trial court may

       “[o]rder execution of all or part of the sentence that was suspended at the time

       of initial sentencing.”); see also Turner’s Br. p. 7. Based on the foregoing, we

       find no abuse of the trial court’s discretion.


                                                 Conclusion

[20]   The trial court did not abuse its discretion when it revoked Turner’s probation

       and ordered him to serve 795 days of his previously suspended 1,345-day



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 10 of 11
       sentence after Turner failed to report to probation and to community

       corrections. We affirm.


[21]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-660 | October 17, 2019   Page 11 of 11
