MEMORANDUM DECISION
                                                                Jun 04 2015, 9:06 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kraig Martin,                                            June 4, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A04-1409-CR-434
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         Cause No. 49F15-1301-FD-3980
State of Indiana,
Appellee-Plaintiff.                                      The Honorable John Chavis, Judge
                                                         The Honorable Hugh Patrick
                                                         Murphy, Magistrate




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015        Page 1 of 14
                                             Case Summary
[1]   Kraig Martin appeals the revocation of his probation and his placement in

      community corrections. We affirm in part and reverse in part.


                                                    Issues
[2]   Martin raises two issues, which we restate as:


              I.       whether there is sufficient evidence to support the
                       revocation of his probation and placement in
                       community corrections; and

              II.      whether the trial court properly ordered him to pay
                       $660 in fees following the revocation of his
                       probation.

                                                     Facts
[3]   On April 15, 2014, Martin pled guilty to one count of Class D felony theft and

      one count of Class B misdemeanor unlawful entry of a motor vehicle. Martin

      received a total sentence of 730 days, with 365 days executed and 365 days

      suspended to probation. The executed portion of Martin’s sentence was to be

      served through Marion County Community Corrections (“MCCC”) on home

      detention. On July 2, 2014, the trial court found Martin violated conditions of

      home detention and ordered him to serve the remainder of his executed

      sentence through work release at the Duvall Residential Center (“DRC”).


[4]   On August 6, 2014, MCCC filed a petition alleging Martin had violated DRC

      rules by “engaging in trafficking”; by possessing “an electronic device”; by

      using or possessing “a controlled substance”; by “refusing a mandatory

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 2 of 14
      program”; and by failing “to comply with his monetary obligation.” App. p.

      34. The petition further stated:

              On 7/7/14, the defendant received a disciplinary conduct report for
              trafficking, for attempting to bring in 25 grams of loose tobacco with 7
              cigarette rolling papers to DRC. On 7/7/14, the defendant received a
              disciplinary conduct report for possession of an electronic device.
              On 7/23/14, the defendant received a disciplinary conduct report for
              possession or use of a controlled substance. The report indicated that
              there was a syringe found under the defendant’s bunk mattress. On
              7/23/14, the defendant received a disciplinary conduct report for
              refusing a mandatory program. A violation is being filed in lieu of a
              disciplinary hearing to address the disciplinary conduct reports.
              As of 8/6/14, the defendant has paid $38.00 toward his Work Release
              fees and is currently $214.50 in arrears to Marion County Community
              Corrections. The defendant is currently unemployed.
      Id. at 34-35. On August 12, 2014, the State also filed a petition to revoke

      Martin’s probation based on his violation of MCCC/DRC rules.


[5]   The trial court held a joint hearing on both petitions. The State presented only

      one witness, William Beck, who is a “Court Team Liaison” working for

      MCCC. Tr. p. 4. Beck did not know Martin personally and had no personal

      knowledge of any of the alleged violations against Martin. During his

      testimony, Beck read from Martin’s MCCC file regarding the alleged violations,

      which had been prepared by another MCCC employee. The testimony tracked

      almost verbatim the language of the petition quoted above. Beck was unable to

      provide further detail regarding the alleged violations on cross-examination. He

      could not say whether any controlled substance was found in the syringe

      allegedly found under Martin’s bed. It also was revealed that after the filing of


      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 3 of 14
      the notice of violation, Martin completed the mandatory program he was

      alleged not to have completed.


[6]   During cross-examination, Beck indicated that he had no knowledge of what

      kind of electronic device Martin was alleged to have possessed in violation of

      DRC rules. At that time, Martin introduced an email between his attorney and

      the DRC employee who had confiscated a cell phone from Martin, Michael

      Nesbitt.1 The attorney had written, “It’s my understanding that Mr. Martin

      gave you his cell phone upon his return from a job search pass, but after

      checking, you realized that he was not allowed to have a phone before securing

      employment and remaining at that employment for a certain amount of time.”

      Ex. A. Nesbitt responded, “That is correct after checking to see if Resident

      Martin was approved it came to my knowledge that Resident Martin was in fact

      not authorized to have such a [sic] electronic device . . . .” Id.                          During his

      testimony, Martin attempted to explain that he thought he was allowed to have

      a cell phone when he went outside DRC and had to put it in a locker when he

      returned to the facility, but he did not realize he was absolutely prohibited from

      having one.


[7]   At the conclusion of this hearing, the State said,

                 As to the cell phone, um—if the Court finds it persuasive that…in the
                 e-mail, that he was given the cell phone by someone else, and that—
                 that was the Defendant’s testimony—then the State would have to




      1
          Martin’s attorney had written the email in lieu of subpoenaing Nesbitt to testify at the revocation hearing.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015                      Page 4 of 14
              withdraw that violation. Um—especially if he was just coming in to
              Duvall, and was then giving that cell phone back for the lockers, and
              that the violation wasn’t for “inside” the actual center itself.
      Tr. p. 39.


[8]   The trial court then stated,

              I find by a preponderance of the evidence that he did have tobacco,
              which is prohibited under personal property allowed. It says that
              explicitly in the rules. Rolling papers and syringe are paraphernalia—
              those are prohibited too. Even though the—they’re withdrawing the
              electronic device, the Exhibit A says that Nesbitt determined that he
              had no permission to have the device. So that fairly speaks to its—for
              itself too, I think.
      Id. at 42. The trial court made no finding with respect to the allegations that

      Martin had failed to complete a mandatory program or failed to pay fees. The

      trial court then revoked both Martin’s placement in DRC and his probation and

      required him to serve the remainder of his suspended sentence. It also stated, in

      response to a question regarding fees, that Martin was “[i]ndigent—unless

      there’s a restitution claim,” which there was not. Tr. p. 43. The trial court did

      not state that it would require Martin to pay any fees. In a subsequent written

      order, however, the trial court ordered Martin to pay $660 in fees. Martin now

      appeals.


                                                    Analysis

                                      I. Sufficiency of the Evidence

[9]   Martin is challenging both the revocation of his placement in MCCC and his

      probation. “For purposes of appellate review, we treat a hearing on a petition

      to revoke a placement in a community corrections program the same as we do a

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 5 of 14
       hearing on a petition to revoke probation.” Cox v. State, 706 N.E.2d 547, 549

       (Ind. 1999). “Both probation and community corrections programs serve as

       alternatives to commitment to the Department of Correction and both are made

       at the sole discretion of the trial court.” Id. Placement in either a community

       corrections program or on probation is not a right and is a “matter of grace”

       and a “conditional liberty that is a favor . . . .” Id. As a matter of due process,

       a defendant facing revocation of either a community corrections placement or

       probation “is entitled to representation by counsel, written notice of the claimed

       violations, disclosure of the opposing evidence, an opportunity to be heard and

       present evidence, and the right to confront and cross-examine witnesses in a

       neutral hearing before the trial court.” Id. at 550.


[10]   Before addressing the sufficiency of the evidence to revoke Martin’s community

       corrections placement and his probation, we note his argument that the State

       failed to provide adequate notice of the allegations against him. Specifically, he

       observes that although he was alleged to have committed “trafficking” in

       tobacco, it failed to present any evidence that he trafficked in tobacco as defined

       in the DRC rule book as opposed to merely possessing it.2 The trial court also

       did not find that Martin trafficked in tobacco as opposed to merely possessing

       it. Additionally, Martin notes that he was alleged to have possessed a




       2
        The DRC rule book defined “trafficking” as having the same definition as the crime of prison trafficking
       now found in Indiana Code Section 35-44.1-3-5, which requires intent to deliver contraband to an inmate.
       There was no evidence of whether Martin intended to deliver any tobacco to any other person as opposed to
       keeping the tobacco for personal use.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015              Page 6 of 14
       controlled substance but the State only presented evidence and the trial court

       only found that he possessed a syringe—i.e., paraphernalia—but he was not

       alleged to have possessed paraphernalia, which is a separate violation according

       to the DRC rule book.


[11]   The written notice of an alleged community corrections or probation violation

       must be detailed enough to allow the defendant to adequately prepare a defense

       to the charge. Long v. State, 717 N.E.2d 1238, 1240 (Ind. Ct. App. 1999).

       Community corrections or probation “may not be revoked based upon proof of

       an act that is merely similar in nature to the violation charged in the written

       notice.” Id. In Long, a probationer was alleged to have “tampered” with his

       ankle transmitter by attempting to remove it, but at the revocation hearing the

       State only presented sufficient evidence that he had attempted to “fix” his

       transmitter after he had broken it after falling on it. Id. Regardless, the trial

       court found that there was a separate home detention/probation rule that

       prohibited probationers from attempting to fix an ankle transmitter and revoked

       probation on that basis. On appeal we reversed, holding that probation could

       not be revoked based upon an act that was similar but not identical to the

       charged act. Id. at 1241 (citing Harder v. State, 501 N.E.2d 1117, 1121 (Ind. Ct.

       App. 1986) (reversing revocation of probation where defendant was alleged to

       have operated a vehicle with BAC of .10 or greater but State only proved

       defendant had operated a vehicle while impaired)). Based upon the holdings in

       Long and Harder, we cannot say it was appropriate to revoke Martin’s probation




       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 7 of 14
       and DRC placement based upon evidence that he merely possessed tobacco and

       a syringe when he was not charged with possessing tobacco or paraphernalia.


[12]   This leaves the only remaining allegation that the trial court found to be proven,

       Martin’s possession of a cell phone. Martin contends there was insufficient

       evidence that he possessed one in violation of DRC rules, and notes the State’s

       comment in closing argument that “if the Court finds it persuasive that . . . in

       the e-mail, that he was given the cell phone by someone else, and that—that

       was the Defendant’s testimony—then the State would have to withdraw that

       violation.” Tr. p. 39.


[13]   The State must prove a violation of community corrections rules or probation

       by a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614, 617

       (Ind. 2013). When reviewing the sufficiency of the evidence to support

       revocation of a community corrections placement or probation, we consider

       only the evidence most favorable to the trial court’s decision without

       reweighing evidence or judging witness credibility. Figures v. State, 920 N.E.2d

       267, 272 (Ind. Ct. App. 2010). We will affirm if there is substantial evidence of

       probative value to support the conclusion that a defendant has violated any

       terms of community corrections placement or probation. Id. Even if a trial

       court has made erroneous findings with respect to some alleged violations,

       proof of any one violation of community corrections rules or probation is

       sufficient on appeal to affirm revocation. Id. at 273.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 8 of 14
[14]   In part, Martin challenges the probative value of Heck’s testimony, given that

       he had no personal knowledge of Martin or his alleged possession of a cell

       phone; indeed, Heck did not even know what type of electronic device Martin

       was alleged to have possessed. Heck merely was reading notes placed in

       Martin’s file by an employee at DRC, who in turn may or may not have had

       any personal knowledge of whether Martin possessed a cell phone. To the

       extent Heck was relating hearsay, or even hearsay of possibly double or triple

       layers, Martin did not object to Heck’s testimony on that or any other basis.

       Although not all hearsay is necessarily admissible in probation revocation

       hearings, a defendant must object to such evidence in order to preserve the issue

       for appeal. Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004). Because

       Martin did not object to Heck’s testimony, it was properly before the trial court

       for its consideration.


[15]   In any event, the more definitive evidence regarding Martin’s possession of a

       cell phone was the exhibit introduced by Martin relating the email exchange

       between his attorney and Nesbitt. Nesbitt clearly stated in the email that

       Martin was not authorized to possess a cell phone, that he confiscated the

       phone after learning that information, that he then asked Martin if he was

       aware of the DRC rules regarding cell phones, and Martin responded with an

       obscenity. Martin claimed during his testimony that he thought he was allowed

       to have a cell phone outside of the DRC premises. However, the DRC rule

       book clearly lists “cell phones” as a “strictly prohibited” item. Ex. B. p. 17. It

       also states that “unauthorized” possession of a cell phone is a Class B rule


       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 9 of 14
       violation. Id. Viewed in a light most favorable to the trial court’s ruling, this

       evidence establishes that Martin violated DRC rules by possessing a cell phone

       without authorization.


[16]   We also do not believe the State unequivocally withdrew the allegation

       regarding the cell phone. Rather, it offered to withdraw the allegation “if the

       Court finds it persuasive . . . that he was given the cell phone by someone else .

       . . .” Tr. p. 39 (emphasis added). The trial court evidently did not find Martin’s

       attempted explanation for his possession of the cell phone to be persuasive, and

       it was not required to do so. That being the case, the trial court was not barred

       from revoking Martin’s placement in DRC and his probation on the basis of his

       unauthorized possession of a cell phone.


                                            II. Imposition of Fees

[17]   Martin also contends that even if his DRC placement and probation were

       properly revoked, the trial court erred in imposing fees of $660 against him in

       its written probation revocation order. He notes that at the end of the

       revocation hearing, a representative of the State asked, “Your Honor, in regards

       to fees? Did you want those waived also?” Tr. p. 43. The trial court

       responded, “Indigent—unless there’s a restitution claim.” Id. There was no

       restitution claim. The $660 in fees was made up of $100 for public defender

       costs and $560 in probation fees.


[18]   With respect to the public defender fee, there was no authority for the trial court

       to impose such a fee after finding Martin to be indigent. See Banks v. State, 847


       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 10 of 14
       N.E.2d 1050, 1052 (Ind. Ct. App. 2006), trans. denied. We reverse that portion

       of the fee order.


[19]   However, despite the finding of indigency, there was no absolute prohibition

       against the trial court ordering Martin to pay the probation fees. An indigent

       defendant is not shielded from all costs or fees related to a conviction. Berry v.

       State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011); see also Banks, 847 N.E.2d at

       1052 (reversing imposition of public defender fee upon indigent defendant but

       not other court costs controlled by different statutes). Indiana Code Section 33-

       37-2-3 requires a trial court to hold an indigency hearing before imposing costs

       on a criminal defendant, but it does not bar the imposition of costs if a

       defendant is indigent; it simply bars the imprisonment of the person for failure

       to pay costs.3 Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002). The trial

       court’s written order did not specify that Martin could not be imprisoned for

       failing to pay the costs, but it did not have to do so. See id. Thus, we affirm the

       trial court’s imposition of $560 in probation costs against Martin, with the

       understanding that he cannot be imprisoned should he fail to pay those costs.




       3
         We recently held that a trial court may, within its discretion, delay holding an indigency hearing regarding
       payment of probation fees until a defendant completes his or her sentence. Johnson v. State, -- N.E.3d --, No.
       49A02-1406-CR-437 ¶ 4 (Ind. Ct. App. Mar. 6, 2015). The trial court here instead made a determination of
       indigency at the revocation hearing.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015                  Page 11 of 14
                                                 Conclusion
[20]   There was sufficient evidence to revoke Martin’s probation and his placement

       in community corrections based on the allegation that he possessed an

       electronic device in violation of DRC rules. We reverse the imposition of the

       $100 public defender fee against Martin but affirm the remaining $560 in fees.


[21]   Affirmed in part and reversed in part.


       Bailey, J., concurs.


       Riley, J., concurs and dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 12 of 14
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Kraig Martin,                                            Court of Appeals Cause No.
                                                                49A04-1409-CR-434
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Riley, Judge concurring in part and dissenting in part

[22]   While I concur with the majority’s conclusion on the adequacy of the State’s

       notice of Martin’s charges, I respectfully dissent from its finding that the State

       presented sufficient evidence to sustain Martin’s possession of a cellphone in

       violation of DRC rules. As pointed out by the majority, the only evidence

       presented by the State was the testimony of Heck, who did not have personal

       knowledge of the type of electronic device or whether Martin was even allowed

       to possess a cell phone. In turn, Martin testified that an officer handed him his


       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015      Page 13 of 14
cell phone when he left for an authorized job search outing and the officer did

not inform him that he was not allowed to possess a cell phone in the facility.

When Martin returned from his employment search several hours later, he

handed the phone back to the officer when entering the building. DRC

employee Nesbitt corroborates Martin’s testimony in part. Even the State

appears to acknowledge the weakness of its own charge when it admitted the

possible credibility of Martin’s testimony “especially if [Martin] was just

coming in to Duvall, and was then giving that cell phone back for the lockers,

and that the violation wasn’t for ‘inside’ the actual center itself.” (Transcript p.

39). I conclude that there is no substantial evidence of probative value that

Martin possessed a cell phone without authorization.


Furthermore, in so far the majority affirmed the trial court’s imposition of

probation fees, I dissent. At the conclusion of the revocation hearing, the trial

court was specifically asked whether it wanted the “fees” “waived.” (Tr. p. 43).

The trial court responded “Indigent – unless there’s a restitution claim.” (Tr. p.

43). As no restitution was claimed, the record established that Martin was

found indigent for purposes of fees. Despite this finding, the trial court’s

written sentencing order imposes a monetary obligation for probation fees.

When oral and written sentencing statements conflict, we examine the two

statements together to discern the intent of the sentencing court. Walker v. State,

932 N.E.2d 733, 738 (Ind. Ct. App. 2010). As I conclude that the trial court

specifically and unambiguously waived the probation fees, I would remand for

a correction of this clerical error. See id.


Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015   Page 14 of 14
