 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Sep 22 2015, 8:39 am
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
Douglas R. Long                                          Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dequincy Clay,                                           September 22, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1502-CR-116
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff                                       Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1007-FC-247



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015   Page 1 of 6
                                            Case Summary
[1]   Dequincy Clay (“Clay”) appeals the revocation of his probation. He presents a

      single, consolidated issue, challenging the sufficiency of the evidence in support

      of the revocation. We affirm.



                                   Facts and Procedural History
[2]   On March 5, 2012, Clay pled guilty to Carrying a Handgun Without a License,

      as a Class C felony. 1 He was sentenced to five years imprisonment, with two

      years executed on in-home detention, and three years suspended to probation.

      Clay’s probation began on April 4, 2013.


[3]   On December 5, 2014, the State filed a Notice of Probation Violation, alleging

      that Clay had committed new criminal offenses against his wife, Kari Clay

      (“Kari”), including Battery, Criminal Recklessness, Pointing a Firearm,

      Strangulation, and Intimidation. 2 On January 26, 2015 and February 11, 2015,

      the trial court held an evidentiary hearing. Kari testified concerning events that

      had occurred on November 17, 2014. The State also submitted photographic

      exhibits documenting severe injuries to Kari’s face and body.




      1
          Ind. Code § 35-47-2-1.
      2
        The State also alleged that Clay had consumed alcohol in violation of a condition of his probation. This
      allegation was subsequently dismissed.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015           Page 2 of 6
[4]   The trial court revoked Clay’s probation and ordered that he serve 910 days of

      his previously-suspended sentence. This appeal ensued.



                                Discussion and Decision
[5]   Clay contends that the revocation decision lacks sufficient evidentiary support.

      More particularly, he claims that the State bore the burden of establishing the

      conditions of his probation through the testimony of the probation officer,

      certified documents, or having the trial court take judicial notice of its records

      showing the probationary conditions. He further claims that his counsel failed

      to make an appropriate objection highlighting the omission.


[6]   A probation revocation hearing is not equivalent to an adversarial criminal

      proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due

      Process Clause applies to probation revocation proceedings, and the due

      process rights of a probationer include: “written notice of the claimed

      violations, disclosure of the evidence against him, an opportunity to be heard

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

      neutral and detached hearing body[.]” Id. at 549. Because probation

      revocation procedures “are to be flexible, strict rules of evidence do not apply.”

      Id.


[7]   A defendant is not entitled to serve a sentence in either probation or a

      community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.

      App. 2009). Rather, such placement is a “matter of grace” and a “conditional


      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015   Page 3 of 6
      liberty that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind.

      Ct. App. 1995).


[8]   Probation may be revoked for violation of a probation condition. Runyon v.

      State, 939 N.E.2d 613, 616 (Ind. 2010). Indiana Code Section 35-38-2-1(b)

      provides in relevant part: “[i]f the person commits an additional crime, the

      court may revoke the probation.” The State must prove the violation by a

      preponderance of the evidence. Runyon, 939 N.E.2d at 616. If a defendant

      violates the conditions of his probation, the court may impose sanctions after

      conducting a hearing:


              (1) Continue the person on probation, with or without modifying or
                  enlarging the conditions.
              (2) Extend the person’s probationary period for not more than one
                  (1) year beyond the original probationary period.
              (3) Order execution of all or part of the sentence that was suspended
                  at the time of initial sentencing.


      Ind. Code § 35-38-2.3(h).


[9]   At Clay’s probation revocation hearing, Kari testified to the following. On

      November 17, 2014, Clay struck Kari repeatedly, with his fists and with a gun.

      Clay strangled Kari, kicked her, and pulled out her hair. Clay also pointed a

      gun at Kari’s son. Clay threatened Kari with a knife. He smashed a framed

      photograph against Kari’s head, telling her that she would be meeting her

      deceased mother. Kari suffered a concussion, extensive bruising, and a

      fractured frontal plate in her face. Kari required thirteen stiches near her eye.



      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015   Page 4 of 6
       She was hospitalized for two days. The State also submitted several

       photographs depicting Kari’s extensive injuries.


[10]   This is sufficient evidence from which the fact-finder could conclude, by a

       preponderance of the evidence, that Clay committed an additional crime.

       Pursuant to Indiana Code Section 35-38-2-1, the trial court was authorized to

       revoke Clay’s probation.


[11]   Clay asks that we disregard this testimonial and documentary evidence and

       require compliance with the suggestion of the second footnote in Lampley v.

       State, 31 N.E.3d 1034 (Ind. Ct. App. 2015), that is:


               We note that Lampley’s conditions of probation were not entered
               into evidence, though they were included in the appendix on
               appeal. The better practice is for the State to introduce the
               conditions either through the testimony of the probation officer,
               certified documents, or having the trial court take judicial notice
               of its records showing the probationer’s conditions of probation.
               Not entering the conditions of probation into evidence has
               previously been argued to this court. See Johnson v. State, 692
               N.E.2d 485, 486 (Ind. Ct. App. 1998). However, because
               Johnson did not object to evidence of the alleged violation in that
               case, we deemed his argument waived. Id. at 487. We caution
               that failing to enter the conditions of probation into evidence
               runs the risk of not satisfying the substantial evidence of
               probative value standard we use on review. See, e.g., id.


[12]   We do not disagree with the cautionary language of Lampley. However, in the

       instant Notice of Probation Violation, the State alleged that Clay had

       committed new crimes. All probationers are required to refrain from


       Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015   Page 5 of 6
       committing other crimes. I.C., § 35-38-2-1. The State need not have established

       that Clay was subject to, or violated, another term of probation to support the

       revocation decision. For this reason, an objection by Clay’s counsel would

       have been futile. 3


[13]   The decision to revoke Clay’s probation and order reinstatement of a portion of

       his previously-suspended sentence is supported by sufficient evidence.


[14]   Affirmed.


       Baker, J., and Mathias, J., concur.




       3
         Clay claims to have a Sixth Amendment right to effective assistance of trial counsel; however, probation
       revocation proceedings are not equivalent to a criminal trial. See Cox, 706 N.E.2d at 550 (“It is well settled
       that probationers are not entitled to the full array of constitutional rights afforded defendants at trial.”)

       Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-116| September 22, 2015              Page 6 of 6
