MEMORANDUM DECISION
                                                                   Apr 14 2015, 9:38 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
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

Rex A. Shannon,                                           April 14, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          48A02-1409-CR-653
        v.                                                Appeal from the Madison Circuit
                                                          Court.
State of Indiana,                                         The Honorable Dennis Carroll,
                                                          Judge.
Appellee-Plaintiff.
                                                          Cause No. 48D01-1106-FB-1043




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015     Page 1 of 11
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Rex A. Shannon (Shannon), appeals the trial court’s

      revocation of his probation.


[2]   We affirm.


                                                    ISSUES

[3]   Shannon raises three issue on appeal which we consolidate and restate as the

      following two issues:

      (1) Whether Shannon received ineffective assistance of trial counsel; and

      (2) Whether the trial court abused its discretion when it revoked his probation

      and imposed the balance of his previously-suspended sentence.


                           FACTS AND PROCEDURAL HISTORY

[4]   On June 7, 2011, the State filed an Information charging Shannon with one

      Count of unlawful possession of a firearm by a serious violent felon, a Class B

      felony; one Count of unlawful possession of firearm by domestic batterer, a

      Class A misdemeanor; and one Count of maintaining a common nuisance, a

      Class D felony. On December 19, 2011, Shannon entered into a plea

      agreement with the State in which he pled guilty to unlawful possession of a

      firearm by a serious violent felon, a Class B felony. On February 6, 2012, the

      trial court accepted the plea agreement and sentenced Shannon to thirteen years

      at the Department of Correction (DOC), with seven years suspended to


      Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015   Page 2 of 11
      probation. The remaining Counts were dismissed as part of the plea agreement.

      Shannon was released to probation on March 31, 2014.


[5]   On July 18, 2014, Madison County Deputy Sherriff Lance Blossom (Deputy

      Blossom) stopped Shannon, who was travelling at sixty-seven miles per hour in

      a fifty-five mile per hour speed zone. After initiating the traffic stop, Deputy

      Blossom approached Shannon’s vehicle and he encountered the smell of

      marijuana emanating from inside. Deputy Blossom immediately called for

      assistance. When back-up arrived, Deputy Blossom again made contact with

      Shannon and explained what he had initially observed. To dispel Deputy

      Blossom’s suspicion, Shannon stated that a search would not yield anything,

      and he consented to his vehicle being searched. In the center console, Deputy

      Blossom found an empty cigarette pack containing a yellow pill which was later

      confirmed to be hydrocodone. After reading Shannon his Miranda rights,

      Shannon informed Deputy Blossom that he had received the hydrocodone pill

      from a friend earlier that day and he did not have a prescription for it.


[6]   On July 22, 2014, the State filed an Information charging Shannon with

      possession of a controlled substance, a Level 6 felony, Ind. Code § 35-48-4-7.

      The next day, Shannon’s probation officer, Carl Chambers (Chambers), filed a

      notice of violation of probation alleging that Shannon: committed a new

      offense, failed to obtain a substance abuse evaluation, failed to pay his

      probation and administrative fees, and failed to maintain full-time work or

      verify his employment. A bifurcated evidentiary hearing was conducted on

      September 2 and 15, 2014, to consider whether or not to revoke Shannon’s

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      probation. At the conclusion of the hearing, the trial court accepted Shannon’s

      admission that he had not obtained a substance abuse evaluation and found

      that the State had met its burden in proving that Shannon had not worked full

      time as required, failed to authenticate his employment information, and

      committed a new crime. As a result, the trial court ordered Shannon to serve

      the balance of his seven-year term in the DOC.


[7]   Shannon now appeals. Additional information will be provided as necessary.


                                  DISCUSSION AND DECISION

                                    I. Ineffective Assistance of Counsel

[8]   Shannon first urges us to find that his trial counsel was ineffective for failing to

      object or to suppress Deputy Blossom’s testimony concerning the search of his

      vehicle.


[9]   We review claims of ineffective assistance of counsel under the two prongs set

      forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690

      N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same

      standard applies to claims of ineffective assistance of trial or appellate counsel.

      Id. To prevail on a claim of ineffective assistance of counsel, the petitioner

      must show that his counsel’s performance fell below an objective standard of

      reasonableness as determined by prevailing norms, and that the lack of

      reasonable representation prejudiced him. Randolph v. State, 802 N.E.2d 1008,

      1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first prong, the petitioner

      must show that counsel’s performance was deficient in that counsel’s

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       representation fell below an objective standard of reasonableness and that

       counsel committed errors so serious that petitioner did not have the “counsel”

       guaranteed by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195

       (Ind. 2006). To show prejudice, the petitioner must show a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. Id. A reasonable probability is a probability sufficient to

       undermine confidence in the outcome. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

       2009).


[10]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Pryor v. State, 973

       N.E.2d 629, 631-32 (Ind. Ct. App. 2012). In addition, when an ineffective

       assistance of counsel claim is based upon a failure to object, the defendant must

       first prove that an objection would have been sustained by the trial court had

       defense counsel objected at trial and, second, that he was prejudiced by the

       failure. Mays v. State, 719 N.E.2d 1263, 1265-66 (Ind. Ct. App. 1999), trans.

       denied.




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[11]   Shannon argues that his trial counsel was ineffective for failing to object to

       Deputy Blossom’s testimony regarding the fruits of the search. Shannon

       maintains that the search violated Article I, Section 11 of the Indiana

       Constitution and the Fourth Amendment to the United States Constitution. In

       countering Shannon’s arguments, the State maintains that the trial court would

       not have permitted trial counsel’s objection since Shannon consented to the

       search and that the search fell within the automobile exception. We agree.


[12]   The Fourth Amendment to the United States Constitution, applicable to the

       States through the Fourteenth Amendment, provides, “The right of the people

       to be secure in their persons, houses, papers, and effects, against unreasonable

       searches and seizures, shall not be violated.” U.S. Const. amend IV. The

       Indiana Constitution includes a nearly-identical provision. Ind. Const. art. I, §

       11; Mitchell v. State, 745 N.E.2d 775, 785–86 (Ind. 2001). “A traffic stop of an

       automobile and temporary detention of its occupants constitutes a ‘seizure’

       within the meaning of the Fourth Amendment.” Bush v. State, 925 N.E.2d 787,

       789–90 (Ind. Ct. App. 2010). A search falls within the automobile exception

       when a vehicle is readily mobile and there is probable cause to believe it

       contains contraband or evidence of a crime. Meister v. State, 933 N.E.2d 875,

       878-79 (Ind.2010) (citing Maryland v. Dyson, 527 U.S. 465, 467 (1999)). When

       there is probable cause, police have the authority to search a vehicle and all

       containers located therein. See Krise v. State, 746 N.E.2d 957, 962 (Ind. 2001).


[13]   We note that Shannon does not argue that Deputy Blossom lacked probable

       cause to search the vehicle. Rather, he contends that the warrantless search was

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       improper because the odor of marijuana did not come from the cigarette box,

       but the car. We have recognized that the odor of marijuana on a person’s

       breath and emanating from inside a vehicle may give rise to probable cause that

       a person possesses marijuana. Edmond v. State, 951 N.E.2d 585, 590–91 (Ind.

       Ct. App. 2011). As noted above, when probable cause exists, police have the

       authority to search a vehicle and all containers located therein. See Krise, 746

       N.E.2d at 962.


[14]   When Deputy Blossom stopped Shannon’s vehicle he noticed the smell of burnt

       marijuana originating from Shannon’s vehicle. Deputy Blossom testified that

       he was specifically looking for marijuana or “something of that nature” in

       Shannon’s vehicle. (Transcript p. 50). Following Deputy Blossom’s request to

       search the vehicle, and supported by the fact that there was probable cause to

       search the vehicle, Deputy Blossom found an empty cigarette pack in the center

       console containing a hydrocodone pill. At Shannon’s evidentiary hearing,

       Deputy Shannon repeated Shannon’s statements that Shannon had acquired the

       hydrocodone pill from a friend and had no prescription for it. Based on the

       foregoing, we conclude that the warrantless search was valid and that it did not

       violate Shannon’s Fourth Amendment rights.


[15]   Finding that the search was valid, we cannot say there is a reasonable

       probability that the objection to Deputy Blossom’s testimony would have been

       sustained if made. Nor is there a reasonable probability that a motion to

       suppress would have been granted on this ground. Accordingly, Shannon has

       not met his burden of demonstrating that counsel’s performance on this issue

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       fell below an objective standard of reasonableness. But even assuming for the

       sake of argument that counsel’s failure to object or move to suppress Deputy

       Blossom’s testimony regarding a search, Shannon has still failed to show that,

       but for counsel’s error, the outcome of the trial would have been different. To

       be precise, Shannon has failed to show that, but for the testimony confirming

       that he committed a new offense—possession of a controlled substance—the

       trial court would not have revoked his probation. In the instant case, Shannon

       made an admission that he had failed to submit to a substance evaluation and

       that he also had failed to pay his probation or administration fees. This court

       has held that a single violation of the terms of probation is sufficient to revoke

       probation. Snowberger v. State, 938 N.E.2d 294, 296 (Ind. Ct. App. 2010).

       Therefore, we find no ineffective assistance of counsel.


                                           II. Probation Revocation

[16]   Lastly, Shannon argues that the trial court abused its discretion by ordering him

       to serve his previously suspended sentence. It is well established that a person’s

       probation may be revoked if the person has violated a condition of probation

       during the probationary period. I.C. § 35-38-2-3(a)(1). We view probation as a

       matter of grace left to the trial court’s discretion, not a right to which a

       defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

       Therefore, a probationer faced with a petition to revoke his probation is not

       entitled to the full panoply of rights he enjoyed before his conviction. Cooper v.

       State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009). For instance, the State only



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       needs to prove an alleged violation of probation by a preponderance of the

       evidence. Id.


[17]   Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

       (Ind. Ct. App. 2006). First, the court must make a factual determination

       concerning whether a violation of a condition of probation has occurred. Id.

       Second, if the trial court finds a violation, the trial court must determine

       whether the violation warrants revocation of the probation. Id. When a

       probationer admits to the violation, the court can proceed to the second step of

       the inquiry and determine whether the violation warrants revocation. Id. At

       this point, the probationer must be given the opportunity to present evidence

       that explains and mitigates his violation. Id.


[18]   Shannon does not dispute that he failed to obtain a substance abuse evaluation,

       nor that his administration and probation fees were not current before the start

       of his evidentiary hearing. Shannon heavily contests the finding that the he had

       not maintained full-time employment or substantiated his employment details

       with his probation officer. In addition, Shannon maintains that he did not

       commit the new crime of possessing a controlled substance. At the probation

       revocation hearing, Chambers stated that Shannon was required to work 35

       hours per week but had only worked “20 to 22 hours” over a “three week

       stretch.” (Tr. p. 40). Most importantly, four months after being released from

       prison, Shannon committed a new offense. At Shannon’s evidentiary hearing,

       Deputy Blossom reiterated Shannon’s statement that he received the

       hydrocodone pill from a friend, and that he had no prescription. Shannon,

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       however, recanted his prior statements and instead called his girlfriend to testify

       that the hydrocodone pill was hers. This court has held that a probation

       hearing is civil in nature, and the State need only prove the alleged violations by

       a preponderance of the evidence. Cox, 706 N.E.2d at 551. As a fact-finder, the

       trial court had to weigh and determine whether to believe Deputy Blossom or

       Shannon. In this case, the trial court gave weight to Deputy Blossom’s

       testimony.


[19]   Lastly, we note that a single violation of the terms of probation is sufficient to

       revoke probation. Snowberger, 938 N.E.2d at 296. Shannon violated not just

       one, but several terms of his probation. As stated in the foregoing discussion,

       Shannon admitted that he had failed to submit to a substance abuse evaluation

       or make a good faith effort to pay his probation or administration fees. In

       addition, by a preponderance of the evidence, the State successfully proved that

       Shannon had failed to keep his probation officer informed about his

       employment details, nor had he worked full time as ordered. More importantly

       is that Shannon committed a new offense while still on probation.


[20]   Based on the foregoing, it is apparent that Shannon chose not to follow the

       conditions of his probation. In light of the foregoing, we decline to disturb the

       trial court’s decision to revoke Shannon’s probation as he has failed to show

       that the trial court abused its discretion in ordering him to serve the entire term

       of the originally-suspended sentence.


                                                CONCLUSION


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[21]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Shannon to serve his previously suspended sentence in

       the DOC.


[22]   Affirmed.


[23]   Vaidik, C. J. and Baker, J. concur




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