Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                              FILED
                                                            Feb 05 2013, 9:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

EDDIE ROGERS,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A05-1206-CR-331
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D05-1012-FC-300



                                        February 5, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Eddie Rogers pled guilty to Class D felony possession of

cocaine and Class A misdemeanor resisting law enforcement and was sentenced to two

years of incarceration with 183 days executed and the remainder suspended to probation.

While serving his sentence on home detention, Appellee-Plaintiff the State of Indiana

petitioned to revoke Rogers’s probation alleging that Rogers had been charged with Class

C felony carrying a handgun without a license.        Following a jury trial resulting in

Rogers’s acquittal on the handgun charge, the trial court found by a preponderance of the

evidence that Rogers had committed the crime and revoked his probation. The trial judge

then referred the case to the original sentencing judge for a calculation of Rogers’s proper

credit time. Rogers claims revocation was an abuse of the trial court’s discretion because

(1) the State asserted insufficient grounds for revocation, (2) Rogers was not given an

evidentiary hearing on the State’s petition, and (3) the sanctioning judge did not hear

evidence of Rogers’s probation violation. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On December 16, 2010, the State charged Rogers with: Count I, Class C felony

possession of cocaine; Count II, Class A misdemeanor resisting law enforcement; and

Count III, Class B misdemeanor public intoxication. The State later reduced Count I to a

Class D felony. Pursuant to a plea agreement, Rogers pled guilty to Counts I and II, and

Count III was dismissed. The trial court, Judge Wendy W. Davis presiding, sentenced

Rogers to two years of incarceration on Count I, with 183 days executed and the

remainder suspended to probation. On Count II, Rogers was sentenced to 183 days

executed, to be served concurrent with his sentence on Count I. Rogers’s executed


                                             2
sentence was to be served in the Allen County Community Corrections Home Detention

Program.

      On August 16, 2011, the State filed a petition to revoke Rogers’s home detention

after Rogers was arrested on “new charges of felony drug offenses.” Appellant’s App. p.

65. The State then petitioned to revoke Rogers’s probation, alleging that Rogers violated

terms of his probation by committing the new offense of dealing in cocaine and by not

successfully completing home detention. On November 22, 2011, the State withdrew its

revocation petition, and Rogers was ordered returned to probation.

      On March 1, 2012, the State again petitioned to revoke Rogers’s probation, this

time alleging that Rogers violated a condition of his probation by not maintaining good

behavior. In support of this allegation, the State’s petition stated, “On or about the 24th

day of February, 2012, the defendant was charged with Carrying a Handgun without a

License, Class C Felony, in cause number 02D06-1202-FC-70.” Appellant’s App. p. 89.

The State also alleged that Rogers had not paid certain probation fees. A “Hearing on

Violation of Probation” was scheduled for May 1, 2012, and the trial court ordered that

Rogers be notified of such. Appellant’s App. p. 13.

      On May 1, 2012, a jury acquitted Rogers on the handgun charge, and the trial

court, Judge John F. Surbeck, Jr. presiding, entered a judgment of acquittal. The court

then asked if the State wished to proceed with the revocation of Rogers’s probation, and

the following exchange took place between Jack Robel, counsel for the State; Greg

Fumarolo, counsel for Rogers; and the court.




                                            3
       MR. ROBEL: I would ask the Court as the trier of fact to find that
       [Rogers] violated the terms of his probation, based upon the evidence that
       was submitted on a preponderance of the evidence.

       COURT: Mr. Fumarolo?

       MR. FUMAROLO: Well Judge, I don’t believe the State even achieved
       that, as I said there were a number of possibilities all of which were in my
       view were of equal possibility, and under the circumstances of the case and
       the jury’s verdict, I’d ask that the Court find that he did not violate his
       probation.

       COURT: Either counsel wish to present evidence?
       ….

       MR. ROBEL: I have no evidence other than what has already been
       presented, Your Honor.

       COURT: I’ll find that by a preponderance of the evidence that the
       Defendant possessed a firearm on the 21st of February 2012 all in violation
       of his probation. I’ll find that he’s violated terms and conditions of
       probation, the suspended sentence is revoked and Defendant is committed
       to the Indiana Department of Correction.

Revocation Hearing Tr. p. 4-5. Neither Rogers nor his counsel responded to the court’s

invitation to present additional evidence.

       After some discussion and confusion on Rogers’s proper credit time, Judge

Surbeck stated, “I’m going to make a finding of revocation … [l]et probation calculate

the credit time and let Judge Davis decide where he serves it.” Revocation Hearing Tr. p.

9. Accordingly, on May 2, 2012, Judge Surbeck issued the following written order:

              The Court having heard evidence in Trial of State v. Rogers 02D06-
       1202-FC-70 Carrying Handgun without a License, which charge is the
       basis of the Verified Petition for Revocation of Probation, in this cause, the
       court finds by a preponderance of evidence that defendant has violated
       terms of his probation. Defendant’s sentence herein is revoked. Cause
       referred to Judge Davis, original sentencing judge for sentencing in this
       cause.


                                             4
Appellant’s App. p. 104-05.

      Pursuant to Judge Surbeck’s referral, Judge Davis conducted a sanctions hearing

on May 8, 2012. At this hearing, Rogers’s counsel stated to the court, “I guess I’m not

sure why Judge Surbeck referred [the case] back to you … I think for a jail time credit

check.” Sanctions Hearing Tr. p. 3. Judge Davis responded, “Amongst other things,”

and then allowed Rogers to argue that his probation should not be revoked. Sanctions

Hearing Tr. p. 3. Ultimately, Judge Davis concluded:

      Pursuant to Judge Surbeck’s order dated May 2nd, 2012, I’ll show that
      Judge Surbeck found by the preponderance of the evidence the Defendant
      violated conditions of probation. Accordingly, I will revoke probation. I
      will note that he is an inappropriate candidate for community revision. I
      will assess … 121 days jail time credit.

Sanctions Hearing Tr. p. 7-8.     Rogers was ordered to the Indiana Department of

Correction to serve the remainder of his previously suspended sentence.

      Thereafter, Rogers filed a motion to correct error, in which he claimed that the

court’s order revoking his probation erroneously stated that he had admitted to the

allegations in the revocation petition. Judge Davis held a hearing on the motion on May

24, 2012, and the parties agreed that the judgment in the case should be amended to

reflect that Rogers did not admit to the allegations.     At this hearing, Rogers was

represented by new counsel, who questioned whether Judge Davis could revoke Rogers’s

probation without having heard the evidence considered by Judge Surbeck at the

revocation hearing. Judge Davis responded:

      As I look at the order entered by Judge Surbeck on May 2 nd, 2012, Judge
      Surbeck’s order after hearing the evidence at trial was that the Defendant’s
      [probation] is herein revoked. Under the Judicial Canons and Ethical


                                           5
        Rules,[1] Judge Surbeck recused himself and asked me to finish and …
        sentence the Defendant accordingly. Therefore, as I read Judge Surbeck’s
        order that he is revoked and … he heard the evidence, I will follow Judge
        Surbeck’s finding that by a preponderance of the evidence, the Defendant
        violated the terms of probation and his sentence is herein revoked.

Motion Hearing Tr. p. 6. Judge Davis subsequently granted Rogers an adjusted credit

time of 138 days but otherwise affirmed the court’s earlier determination with the

following written order:

                Pursuant to Judge Surbeck’s Order of May 2, 2012, Judge Surbeck
        referred case to Judge Davis, the original sentencing Judge, for sentencing
        in this matter. Defendant having previously been advised of his rights, the
        Court hears arguments of counsel. The Court adopts Judge Surbeck’s
        Order dated May 2, 2012 and GRANTS the State’s Verified Petition of
        Revocation of Probation and revokes Defendant’s probation.
        ACCORDINGLY, the Court finds that Judge Surbeck found by a
        preponderance of the evidence the Defendant violated the terms of his
        probation as outlined in Paragraph 1 of the Verified Petition for Revocation
        of Probation. The Court adopts Judge Surbeck’s Finding and Order and
        Defendant’s sentence is herein revoked.
                Defendant is committed to the Indiana Department of Corrections
        for a period of 1 year and 182 days on Amended Count I. Defendant is
        given 138 days jail time credit.

Appellant’s App. p. 120.

                                 DISCUSSION AND DECISION

        Probation is a favor granted by the State, not a right to which a criminal defendant

is entitled. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). Once the State

grants that favor, however, it cannot simply revoke the privilege at its discretion. Id.

Probation revocation implicates a defendant’s liberty interest, which entitles him to some


        1
          The record does not indicate that Judge Surbeck recused himself from the proceeding on the
basis of partiality as is contemplated by the Indiana Code of Judicial Conduct. Rather, Judge Surbeck
referred the case to Judge Davis, in light of her role as the original sentencing judge, to ensure accurate
calculation of Rogers’s credit time.

                                                    6
procedural due process. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).

Because probation revocation does not deprive a defendant of his absolute liberty, but

only his conditional liberty, he is not entitled to the full due process rights afforded a

defendant in a criminal proceeding. Id.

         The minimum requirements of due process include: (a) written notice of the

claimed violations of probation; (b) disclosure to the probationer of evidence against her;

(c) opportunity to be heard in person and to present witnesses and documentary evidence;

(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation); (e) a neutral and detached

hearing body; and (f) a written statement by the factfinder as to the evidence relied on

and reasons for revoking probation. Id. (citing Morrissey, 408 U.S. at 489).

         “Probation is a matter of grace left to trial court discretion….” Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007). “A trial court’s probation decision is subject to review

for abuse of discretion[, which] occurs where the decision is clearly against the logic and

effect of the facts and circumstances.” Smith v. State, 963 N.E.2d 1110, 1112 (Ind.

2012).

            I. Whether the State Asserted Sufficient Grounds for Revocation

         Rogers argues that the trial court abused its discretion in revoking his probation

because the State’s petition asserted insufficient grounds for revocation. In its petition,

the State alleged that Rogers “[d]id not maintain good behavior. On or about the 24th day

of February, 2012, [Rogers] was charged with Carrying a Handgun without a License….”

Appellant’s App. p. 89. Rogers claims that this allegation is insufficient to support


                                              7
revocation because it fails to assert that Rogers committed the charged offense.

       Rogers’s claim relies on the principal that the filing of new charges against a

probationer alone does not warrant the revocation of probation. Martin v. State, 813

N.E.2d 388, 390-91 (Ind. Ct. App. 2004). New charges may be sufficient, however, if the

trial court finds by a preponderance of the evidence that the probationer committed the

charged offenses. Id. at 391 n.3; Isaac v. State, 605 N.E.2d 144, 147 (Ind. 1992). Here,

as stated in its order on the petition for revocation, the trial court found “by a

preponderance of the evidence that defendant has violated [the] terms of his probation.”

Appellant’s App. p. 104. The trial court also stated at the revocation hearing, “I’ll find

that by a preponderance of the evidence that [Rogers] possessed a firearm on the 21st of

February of 2012 all in violation of his probation.” Revocation Hearing Tr. p. 5. See

Clark v. State, 580 N.E.2d 708, 711 (Ind. Ct. App. 1991) (holding written transcript of

revocation hearing sufficient to satisfy the court’s statutory writing requirement).

       We conclude that the allegation that Rogers was charged with carrying a handgun

without a license, while not sufficient alone to support a revocation of Rogers’s

probation, provided Rogers with adequate notice that the State sought revocation on the

ground that Rogers committed the charged offense. Further, we do not find, and Rogers

does not contend, that he was prejudiced by the allegations as stated in the State’s

petition. Immediately preceding Rogers’s revocation hearing, a jury trial was held on the

charge of carrying a handgun without a license. Rogers was represented by counsel at

trial and given the opportunity to present evidence and confront and cross-examine

adverse witnesses on the allegation that he committed the charged offense. This trial


                                             8
resulted in Rogers’s acquittal. Moreover, Rogers did not challenge the sufficiency of the

State’s petition before the trial court and, therefore, has waived this issue on appeal. See

Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied.

                  II. Whether Rogers Was Given a Proper Hearing

       Rogers argues that the trial court abused its discretion in revoking his probation

without first holding an evidentiary hearing. Indiana Code section 35-38-2-3(d) requires

the court to conduct a hearing concerning the alleged probation violation unless the

probationer admits to the violation, waives the right to a hearing, and is advised of the

resulting forfeiture of certain due process rights. See Ind. Code § 35-38-2-3(e). Rogers

claims that the proceeding on May 1, 2012, did not constitute a hearing. We disagree.

       We note initially that the proceeding at issue was intended as a hearing on the

revocation of Rogers’s probation.     It was scheduled as a “Hearing on Violation of

Probation,” Appellant’s App. p. 13; the trial court ordered that Rogers be notified of

such; and Rogers makes no argument that notice was not received or was in any way

defective.   The proceeding also was introduced and acknowledged as a hearing on

revocation. Following Rogers’s acquittal on the handgun charge, the trial court asked the

State if it wished to proceed with the revocation. The State affirmed that it did, and,

when prompted for reply, Rogers asked that the court find that he did not violate his

probation.

       Rogers contends that his revocation hearing was insufficient because he did not

present evidence or confront and cross-examine adverse witnesses. See Morrissey, 408

U.S. at 482. Due process, however, requires only that Rogers be given the “opportunity”


                                             9
to do such things. Id. Here, the trial court satisfied this requirement when it asked if

either party wished to present evidence. The State responded that it would rely on the

evidence presented at trial, whereas both Rogers and his counsel remained silent.

Accordingly, the trial court issued its order “having heard evidence in Trial of State v.

Rogers … [for] Carrying Handgun without a License.” Appellant’s App. p. 104. It is not

disputed that Rogers was given due process at trial.

       Rogers also contends that, should his silence in response to the trial court’s

question, “Either counsel wish to present evidence?” be construed as a waiver of a

hearing, that waiver is invalid because Rogers was not advised of his rights as required by

Indiana Code section 35-38-2-3(e). But in light of our finding above that the proceeding

on May 1, 2012, was indeed a probation revocation hearing, we decline Rogers’s

invitation to view his silence as an unknowing or involuntary waiver. The hearing was

held, Rogers was present and represented by counsel, and he was given the opportunity to

defend himself.

        III. Whether the Sanctioning Judge Was Required to Hear Evidence

       Rogers argues that the trial court abused its discretion in revoking his probation

because the judge that imposed the sanction of revocation was not the same judge that

found Rogers to have violated probation. Rogers relies on Indiana Trial Rule 63(A),

which states, “The judge who presides at … a hearing at which evidence is received shall,

if available, hear motions and make all decisions and rulings required to be made by the

court relating to the evidence and the conduct of the … hearing after [it] is concluded.”

Rogers claims that Judge Davis could not properly determine an appropriate sanction for


                                            10
his probation violation without first hearing evidence on the severity of that violation.

This contention, however, misconstrues when and by whom Rogers’s probation was in

fact revoked.

        At the revocation hearing on May 1, 2012, Judge Surbeck found that Rogers had

violated probation by carrying a handgun without a license. On this ground, Judge

Surbeck revoked Rogers’s probation and referred the case to Judge Davis for a

determination of Rogers’s proper credit time. Revocation Hearing Tr. p. 9. Although the

purpose of this referral was labeled as “sentencing” in Judge Surbeck’s written order

issued May 2, 2012, Appellant’s App. p. 105, Rogers acknowledged it as “a jail time

credit check” before Judge Davis on May 8, 2012. Sanctions Hearing Tr. p. 3. It is of no

consequence that Judge Davis allowed argument on Rogers’s probation revocation at the

sanctions hearing or that Judge Davis manifested discretion in the court’s decision to

revoke. By that time, Rogers’s probation had already been revoked by Judge Surbeck,

and all that remained for Judge Davis to do was to calculate Rogers’s credit time and

sentence him accordingly. For these purposes, it was not necessary that Judge Davis hear

the evidence presented at Rogers’s revocation hearing, and therefore, T.R. 63 was not

implicated. See T.R. 63(A) (requiring that a judge who hears evidence make all decisions

“relating to the evidence”).

        In summary, we conclude that Rogers was not denied the limited due process

afforded to probationers in revocation proceedings, and we affirm the judgment of the

trial court.

        The judgment of the trial court is affirmed.


                                             11
NAJAM, J., and FRIEDLANDER, J., concur.




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