 Pursuant to Ind. Appellate Rule 65(D),                                          Oct 22 2013, 5:29 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:
GILDA W. CAVINESS                                  GREGORY F. ZOELLER
Caviness Law Office, LLC                           Attorney General of Indiana
Rushville, Indiana
                                                   CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

BRIAN K. MOORE,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )       No. 73A01-1301-CR-40
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                      APPEAL FROM THE SHELBY CIRCUIT COURT
                      The Honorable Charles D. O’Connor, Special Judge
                               Cause No. 73D01-1001-FC-7


                                        October 22, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Brian Moore (“Moore”) pleaded guilty in Shelby Superior Court to Class C felony

trafficking with an inmate and was sentenced to four years with two years to be served in

the Indiana Department of Correction and two years suspended. The State subsequently

filed a petition to revoke Moore’s probation. The trial court found by a preponderance of

the evidence that Moore violated the terms of his probation and ordered that the

suspended sentence be executed. Moore appeals and argues that there was insufficient

evidence for the trial court to revoke his probation and that Indiana’s probation statutes

are too vague or ambiguous to provide adequate notice to Moore of his required conduct.

      We affirm.

                             Facts and Procedural History

      On April 7, 2010, Moore pleaded guilty to Class C felony trafficking with an

inmate. On May 5, 2010, Moore was sentenced to four years, with two years to be served

in the Indiana Department of Correction and two years suspended. Appellant's Appendix

p. 31. Moore was placed on probation for two years. During the sentencing hearing, the

trial court informed Moore of the terms of his probation. The first term was that Moore

was ordered not to commit another crime. Sentencing Tr. p. 25.

      On March 2, 2012, the State filed a petition to revoke probation alleging that

Moore’s whereabouts were unknown. Moore appeared at the March 14, 2012 revocation

hearing, and testified that he had never been released from incarceration. He was

currently being held in Shelby County for new charges, and “caught a new case” while he

was incarcerated. Probation Tr. p. 4. The petition was dismissed.



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      On September 17, 2012, the State filed a second petition to revoke probation

alleging that Moore had been charged with Class A felony dealing in cocaine “on or

about the 4th day of February, 2012.” Appellant’s App. p. 46. During the November 8,

2012 fact finding hearing, the State introduced copies of Moore’s guilty plea and

sentencing order for the Class A felony dealing in cocaine charge. The trial court

revoked Moore’s probation and ordered Moore to serve his previously suspended

sentence with the Department of Correction. Appellant’s App. p. 56.

                               Discussion and Decision

      The trial court’s decision to revoke probation is reviewed for an abuse of

discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (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.” Id. Under Indiana Code section 35-38-2-3(a), a court

may revoke probation if a person violates a condition of probation during the

probationary period. In addition, under Indiana Code section 35-38-2-1(b), the court may

revoke probation if a probationer commits any additional crime.

                                I. Insufficient Evidence

      Moore argues that there was insufficient evidence for the trial court to revoke his

probation. When the sufficiency of evidence is challenged, we will neither “reweigh the

evidence nor reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind.

Ct. App. 2006) (citing Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004)). Rather,

we look to the evidence most favorable to the State and affirm the judgment if “there is

substantial evidence of probative value supporting revocation.”       Id.   We are also

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reminded that the State’s burden of proof regarding alleged probation violations is proof

by a preponderance of the evidence. Id.

       On February 4, 2012, while on probation for his trafficking offense, Moore

committed another crime by dealing cocaine.          He pleaded guilty to this offense.

Therefore, there is sufficient evidence that Moore violated the terms of his probation. As

previously noted, a “violation of a single condition of probation is sufficient to permit a

trial court to revoke probation.” Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.

2005); see also Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct. App. 2000); Brooks v. State,

692 N.E.2d 951, 953-54 (Ind. Ct. App. 1998).

       Moore argues that because he did not receive a written copy of the terms, he did

not receive sufficient notice of the terms of his probation. In Braxton v. State, 651

N.E.2d 268, 270 (Ind. 1995) the Indiana Supreme Court held that, “The law of this state

is well-established that although a trial court must specify the conditions of probation in

the record, it is always a condition of probation that a probationer not commit an

additional crime.” (Internal citations omitted).   During the May 5, 2010 sentencing

hearing Moore admitted that he had been placed on probation several times in the past.

Sentencing Tr. pp. 15-16. The trial court explicitly told Moore that the first term of his

probation was that he was not to commit any other crimes. Id at 25.

       Given that the trial court directly told Moore that commission of another crime

would violate his probation, and given that Moore had been placed on probation several

times in the past, Moore had sufficient notice that commission of a crime was a probation



                                            4
violation. Under these facts and circumstances, the trial court’s revocation of Moore’s

probation is supported by sufficient evidence.

                                            II. Adequate Notice

          Moore argues that Indiana Code Sections 35-38-2-3(a), 35-38-2-2.3, and 35-38-2-

1 are too vague or ambiguous to provide adequate notice to Moore of his required

conduct.       “A criminal statute may be invalidated for vagueness for either of two

independent reasons: (1) for failing to provide notice enabling ordinary people to

understand the conduct that it prohibits, and (2) for the possibility that it authorizes or

encourages arbitrary or discriminatory enforcement.” Brown v. State, 868 N.E. 2d 464,

467 (Ind. 2007). (citation omitted). The statute need only inform the individual of the

generally proscribed conduct; a statute need not list with itemized exactitude each item of

conduct prohibited. State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985) (citation omitted).

          Indiana Code Section 35-38-2-3(a) dictates when a trial court may revoke

probation:

          The court may revoke a person's probation if: (1) the person has violated a
          condition of probation during the probationary period; and (2) the petition
          to revoke probation is filed during the probationary period or before the
          earlier of the following: (A) One (1) year after the termination of probation.
          (B) Forty-five (45) days after the state receives notice of the violation.

          While Indiana Code Section 35-38-2-11 and Indiana Code Section 35-38-2-2.32


1
    Ind. Code Section 35-38-2-1 provides:
          (a) Whenever it places a person on probation, the court shall:
          (1) specify in the record the conditions of the probation; and
          (2) advise the person that if the person violates a condition of probation during the
          probationary period, a petition to revoke probation may be filed before the earlier of the
          following:
                  (A) One (1) year after the termination of probation,
                                                      5
require trial courts to provide conditions of probation to defendants. Section 35-38-2-1

(a) requires trial courts to advise the person of the probation conditions whenever it

places that person on probation. Section 35-38-2-2.3 requires trial courts to provide a

written copy of the probation provisions and inform the person that the State can file a

petition to revoke probation even after the probationary period has ended. In this case the

trial court complied by explicitly reading the terms of probation to Moore. The State

filed a petition to revoke probation during the probationary period.

          Moore further argues that the statutes are vague because they do not provide a

definition of “probationary period.” Appellant’s Br. p. 7. This court has defined the

“probationary period” as “that period of time beginning immediately after sentencing and

ending at the conclusion of the ‘probationary phases’ of the defendant's sentence. Here,

the petition was filed after sentencing but before the conclusion of the ‘probationary

phase.’” Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999). In this case the

State filed its petition to revoke probation after the sentencing and before the end of the

formal probationary period. We therefore conclude that Moore has not established that




                  (B) Forty-five (45) days after the state receives notice of the violation.
2
    Ind. Code Section 35-38-2-2.3 provides:
          (b) When a person is placed on probation, the person shall be given a written statement
          specifying:
          (1) the conditions of probation; and
          (2) that if the person violates a condition of probation during the probationary period, a
          petition to revoke probation may be filed before the earlier of the following:
          (A) One (1) year after the termination of probation.
          (B) Forty-five (45) days after the state receives notice of the violation.


                                                        6
the probation statues are vague or ambiguous, and he was given adequate notice of his

required conduct.

                                      Conclusion

      For all of these reasons, we affirm the revocation of Moore’s probation.

      Affirmed.

NAJAM, J., and BROWN, J., concur.




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