MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 10 2018, 11:12 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ralph J. Johnson,                                        October 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1279
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1305-FB-1449



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018                Page 1 of 10
                                       Statement of the Case
[1]   Ralph J. Johnson (“Johnson”) appeals the revocation of his probation, arguing

      that the trial court violated his right to due process by failing to sufficiently

      specify the reasons for revoking his probation. Finding no due process

      violation, we affirm the trial court’s judgment.


[2]   We affirm.


                                                     Issue
              Whether the trial court violated Johnson’s right to due process
              when revoking his probation.


                                                     Facts
[3]   In 2013, the State charged Johnson with: Count 1, Class B felony unlawful

      possession of a firearm by a serious violent felon; Count 2, Class D felony

      resisting law enforcement; Count 3, Class D felony operating a vehicle as an

      habitual traffic violator; and Count 4, Class B misdemeanor public intoxication.

      On June 19, 2014, the day of Johnson’s scheduled jury trial, he entered into a

      plea agreement with the State. He agreed to plead guilty to Class B felony

      unlawful possession of a firearm by a serious violent felon and Class D felony

      resisting law enforcement in exchange for the State’s dismissal of the remaining

      charges. The parties agreed that Johnson would receive an aggregate sentence

      of ten (10) years, with six (6) years executed in the Department of Correction

      and four (4) years suspended to probation. The plea agreement also included

      specific probation terms regarding abstaining from drug and alcohol use and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 2 of 10
      obtaining drug and alcohol treatment. The trial court accepted Johnson’s plea

      agreement and imposed concurrent sentences of ten (10) years for Johnson’s

      Class B felony conviction and three (3) years for his Class D felony conviction.

      For this aggregate ten (10) year sentence, the trial court ordered, pursuant to the

      plea agreement, that six (6) years were to be executed and four (4) years were

      suspended to probation.


[4]   On November 20, 2017, the State filed a notice of probation violation, alleging

      that Johnson had violated probation by committing another criminal offense.

      Specifically, the State alleged that Johnson had been arrested on November 14,

      2017 and had been charged with operating a vehicle after being an habitual

      traffic offender and operating a vehicle while intoxicated endangering a person.

      Shortly thereafter, on December 7, 2017, the State filed an amended notice of

      probation violation, adding two additional violations. Specifically, the State

      alleged that Johnson: (1) had been arrested on December 5, 2017 and had been

      charged with public intoxication and disorderly conduct; and (2) had tested

      positive for alcohol on November 3, 2017 and November 29, 2017.


[5]   The trial court held a probation revocation hearing on January 18, 2018.

      During the hearing, Johnson’s probation officer testified that Johnson had

      violated probation because he: (1) had been arrested for and charged with

      operating a vehicle after being an habitual traffic violator and operating a

      vehicle while intoxicated on November 14, 2017; (2) had been arrested for and

      charged with public intoxication and disorderly conduct on December 5, 2017;

      and (3) had tested positive for alcohol on November 3 and November 29, 2017.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 3 of 10
[6]   During the revocation hearing, Johnson admitted that had an alcohol problem.

      He also stated that he was taking antabuse. When Johnson’s counsel asked him

      about the State’s allegations that he had “picked up a couple of new cases that

      [we]re pending[,]” Johnson responded, “[u]h, alcohol related, yes[.]” (Tr. Vol.

      2 at 15). On cross-examination, Johnson acknowledged that he had “had a

      relapse” and that he had not taken the antabuse daily. (Tr. Vol. 2 at 16). He

      also testified that he would be willing to go through a substance abuse program

      if the trial court were to order him to do so.


[7]   At the end of the hearing, the trial court confirmed that neither party had any

      further evidence and engaged in the following discussion with the parties:


              THE COURT: And you’re asking me to find that he violated the
              (indiscernible) terms and conditions of his probation?

              [THE STATE]: Yes your Honor.

              THE COURT: And the -- [defense counsel].

              [DEFENSE COUNSEL]: Well, we can’t argue he has the
              pending cases, so --

              THE COURT: Okay. So I’m gonna find that you violated
              probation, Mr. Johnson. I’m gonna revoke you and send you to
              the Vigo County Jail and have Mr. Macke see you this afternoon.
              I may consider – I am not sure what the result will be and the
              disposition. I need some more information before I decide . . .
              and I’m gonna reset this for a hearing um, and I need an
              evaluation from Mr. Macke. I also need an alcohol and drug
              evaluation um, from Hamilton Center, um, and set this for
              disposition.

      (Tr. Vol. 2 at 20-21).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 4 of 10
[8]   That same day, the trial court issued a written order, revoking Johnson’s

      probation. In relevant part, the trial court’s order provided: “Witnesses are

      sworn and this Cause comes before the Court for hearing on the Notice of

      Probation Violation filed herein. Evidence is presented. The Court having

      heard the same and being duly advised in the premises, now find [Johnson] has

      violated the terms of his probation in this matter.” (App. Vol. 2 at 124). The

      trial court also issued an order that Johnson be evaluated by various therapeutic

      programs, including Home of Hope, Freebirds Solution Center, Club Soda, and

      Odyssey House. The trial court also held four additional hearings on January

      22, 2018, February 15, 2018, March 15, 2018, and April 16, 2018, to determine

      the appropriate sanction and placement for Johnson.


[9]   At the final disposition hearing on April 16, the State presented testimony from

      Johnson’s neighbor, Cecil Keller (“Keller”), who testified that he and his wife

      had had multiple problems with Johnson since he had moved next to them in

      August 2017. Keller testified that it had “been nothing but uh, drunkenness and

      uh, drugs and driving while suspended and running in and out and drug

      traffic.” (Tr. Vol. 6 at 6). Additionally, Keller testified that he had called the

      police on Johnson seventy-four times because Johnson frequently walked

      around the yard completely naked or naked with a sock on his penis. Keller

      also testified that he had gotten a protective order against Johnson because he

      had threatened to kill Keller’s wife and dogs and had threatened to commit a

      sexual act against Keller’s wife.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 5 of 10
[10]   When Johnson testified, he disputed Keller’s testimony that he had been

       completely naked and that he had had drugs. Johnson, however, admitted that

       he had an alcohol problem, and he asked to be put into one of the substance

       abuse programs. When Johnson’s counsel asked him about his pending

       charges, Johnson acknowledged that he had some. He stated that “part of this

       revocation is the D.U.I. charges” and said that he had been evaluated for

       community corrections in that case. (Tr. Vol. 6 at 19). Johnson also admitted

       that he had been charged with four crimes in the prior twelve months: (1) an

       indecent exposure charge, which was dismissed; (2) a resisting law enforcement

       charge, to which he pled guilty; (3) a “drunk and disorderly” charge; and (4) a

       D.U.I. charge, which was pending. (Tr. Vol. 6 at 20). He also acknowledged

       that his arrests were all related to his alcohol abuse.


[11]   At the end of the hearing, the trial court stated:


               Well . . . my concern is that you were – you went to the Indiana
               Department of Corrections (sic.), you were given an executed
               sentence, placed on formal probation, ordered to do multiple
               things, including Hamilton Center, abstain from alcohol, receive
               treatment, and you may have stayed sober for a period of time
               but in a very short period of time you were arrested multiple
               times and didn’t abstain from alcohol until the Court, until the
               Court revoked your sentence. So I’m inclined to revoke the
               balance of your sentence and place you in Purposeful
               Incarceration. If you receive the treatment you need, then the
               Court will consider reducing that sentence. But it appears to me
               that Freebirds, Club Soda, that’s not enough for you Mr.
               Johnson. You need to address your alcohol issues, and then
               additionally, address your mental health treatment.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 6 of 10
       (Tr. Vol. 6 at 32-33). That same day, the trial court issued an order, revoking

       Johnson’s probation and ordering him to serve his previously suspended four

       (4) year sentence in the Department of Correction. The trial court, as stated

       during the hearing, placed Johnson in purposeful incarceration and noted that it

       would consider a sentence modification upon his completion of his therapeutic

       program. Johnson now appeals.


                                                   Decision
[12]   Johnson contends that the trial court violated his right to due process by failing

       to specify the reasons for revoking his probation.


[13]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). “A probation hearing is civil in nature[,]” Cox v. State, 706 N.E.2d 547,

       551 (Ind. 1999), reh’g denied, and “probationers do not receive the same

       constitutional rights that defendants receive at trial.” Reyes v. State, 868 N.E.2d

       438, 440 (Ind. 2007), reh’g denied. “Although probationers are not entitled to

       the full array of constitutional rights afforded defendants at trial, ‘the Due

       Process Clause of the Fourteenth Amendment [does] impose [ ] procedural and

       substantive limits on the revocation of the conditional liberty created by

       probation.’” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (quoting Debro v.

       State, 821 N.E.2d 367, 374 (Ind. 2005)).


[14]   One requirement of due process provided to a probationer at a revocation

       hearing includes a written statement by the factfinder as to the evidence relied

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 7 of 10
       upon and reasons for revoking probation. Parker v. State, 676 N.E.2d 1083,

       1085 (Ind. Ct. App. 1997) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

       The requirement for a written statement “is a procedural device aimed at

       promoting accurate fact finding and ensuring the accurate review of revocation

       decisions.” Hubbard v. State, 683 N.E.2d 618, 620-21 (Ind. Ct. App. 1997)

       (footnote omitted). See also Medicus v. State, 664 N.E.2d 1163, 1164 (Ind. 1996)

       (“Due process requires that the reasons for revoking probation be clearly and

       plainly stated by the sentencing judge not merely to give appellant notice of the

       revocation, but also to facilitate meaningful appellate review.”). “[A] trial

       judge’s oral statement, if it contains the facts relied upon and reasons for

       revocation, and is reduced to writing in the transcript of the hearing, is

       sufficient to satisfy this requirement.” Wilson v. State, 708 N.E.2d 32, 33 (Ind.

       Ct. App. 1999).


[15]   Johnson contends that the trial court’s revocation of his probation did “not

       comport with due process” because the trial court “merely made a legal

       conclusion” that he had violated probation and did not specify whether the

       revocation was based on the allegation that he had committed a new offense or

       the allegation that he had used alcohol. (Johnson’s Br. 10). He contends that

       the probation officer’s testimony that he had been arrested and charged with

       new criminal offenses was not sufficient to show that he had committed the

       new offenses. He, however, concedes that the State presented sufficient

       evidence to show he had violated probation by using alcohol, and he

       acknowledges that the “violation of just one condition is sufficient to revoke [a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018   Page 8 of 10
       defendant’s] probation[.]” (Johnson’s Br. 13). Nonetheless, he asks us to

       remand to the trial court “for reconsideration of whether revocation was an

       appropriate sanction.” (Johnson’s Br. 13).


[16]   Here, the State alleged that Johnson had violated probation by: (1) committing

       additional criminal offenses on two separate occasions; and (2) using alcohol.

       During the revocation hearing, the State presented one witness, Johnson’s

       probation officer, who testified that Johnson had violated probation by being

       arrested and charged in two separate causes and by testing positive for alcohol

       on two different dates. When Johnson testified, he admitted that he had an

       alcohol problem and that he had relapsed. He also acknowledged that he had

       pending charges that were “alcohol related[.]” (Tr. Vol. 2 at 15). At the end of

       the revocation hearing, when the trial court was determining whether to find

       that Johnson had violated the terms of his probation, Johnson’s counsel stated

       that acknowledged Johnson “c[ould]n’t argue he has the pending cases[.]” (Tr.

       Vol. 2 at 20).1 Thereafter, the trial court revoked Johnson’s probation. The trial

       court’s oral statements at the hearing and its written order, along with the

       hearing transcript, indicate that the reasons for revoking Johnson’s probation

       were the allegations contained in the amended revocation petition. Because the

       trial court’s oral and written statements satisfy the written statement

       requirement and serve the requirement’s purpose of giving notice of the reasons



       1
        The parties dispute the meaning of the statement of Johnson’s counsel. The State contends that Johnson’s
       counsel admitted that Johnson had committed the new offenses, while Johnson contends that the statement
       was merely an acknowledgment that Johnson had pending cases.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018              Page 9 of 10
       for the revocation—even reasons that may be improper2—and facilitating

       meaningful review, we conclude that the trial court did not violate Johnson’s

       due process rights. See, e.g., Hubbard, 683 N.E.2d at 621 (the trial court’s

       written revocation order, which provided the reasons for revocation, and the

       hearing transcript, which provided the evidence underlying the revocation,

       “provide[d] an adequate basis for appellate review” and were “adequate to

       satisfy the separate writing requirement”). Accordingly, we affirm the trial

       court’s order revoking Johnson’s probation.


[17]   Affirmed.


       Najam, J., and Crone, J., concur.




       2
         We agree with Johnson that, in this specific case, the trial court’s reliance on his new offenses was an
       improper reason for revoking his probation as the State’s evidence at the revocation hearing showed merely
       that Johnson was arrested and charged for new offenses, not that he had committed them. “When a
       probationer is accused of committing a criminal offense, an arrest alone does not warrant the revocation of
       probation.” Johnson v. State, 692 N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a
       criminal charge against a defendant does not warrant the revocation of probation. Martin v. State, 813 N.E.2d
       388, 391 (Ind. Ct. App. 2004). Instead, when the State alleges that the defendant violated probation by
       committing a new criminal offense, the State is required to prove, by a preponderance of the evidence, that
       the defendant committed the offense. Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013). Because the State did
       not present evidence to show that Johnson had committed the new offenses, the trial court’s reliance on this
       reason to revoke Johnson’s probation was improper. See, e.g., Heaton, 984 N.E.2d at 617 (holding that to
       revoke a defendant’s probation based on the allegation that he committed a new criminal offense, the trial
       court must find that the evidence established by a preponderance of the evidence that the defendant
       committed a new criminal offense). Nevertheless, we need not remand to the trial court because it is
       undisputed that Johnson’s alcohol use remains a valid basis for the trial court’s revocation of his probation.
       “Proof of a single violation of the conditions of a defendant’s probation is sufficient to support a trial court’s
       decision to revoke probation.” Hubbard, 683 N.E.2d at 622 (holding that any error in revoking a defendant’s
       probation based upon an improper reason was harmless where other valid reasons for the revocation exist).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1279 | October 10, 2018                    Page 10 of 10
