                                                                                   May 27 2015, 8:10 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John T. Wilson                                            Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tommy Lampley,                                           May 27, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A04-1405-CR-231
              v.                                               Appeal from the Madison Circuit
                                                               Court

      State of Indiana,                                        Lower Court Cause No.
                                                               48D03-9809-CF-209
      Appellee-Plaintiff.
                                                               The Honorable Thomas Newman, Jr.
                                                               Judge




      Pyle, Judge.


                                        Statement of the Case
[1]   Tommy Lampley (“Lampley”) appeals the trial court’s order revoking his

      probation. On appeal, he claims that the trial court abused its discretion by

      revoking his probation because the State presented insufficient evidence

      showing that he violated a term of his probation. Because Lampley admitted to

      Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]                      Page 1 of 7
      participating in unlawful conduct during his probationary period, we affirm the

      trial court’s order revoking his probation.


[2]   We affirm.


                                                      Issue
[3]   Whether the trial court abused its discretion by revoking Lampley’s probation.


                                                      Facts
[4]   On September 2, 1998, the State charged Lampley with assisting a criminal as a

      Class C felony.1 Lampley pled guilty the same day, and on October 21, 1998,

      the trial court sentenced Lampley to eight (8) years with five (5) years executed

      in the Department of Correction and the remaining three (3) years suspended to

      probation. The trial court ordered that Lampley serve his sentence

      consecutively to a prior possession of cocaine conviction.


[5]   On January 17, 2014, Lampley filed a motion to modify his sentence, and the

      trial court held a hearing on March 10, 2014. After taking evidence from

      Lampley and hearing arguments from the State, the trial court modified

      Lampley’s placement of his executed sentence to work release over the State’s

      objection.




      1
          IND. CODE § 35-44-3-2.


      Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]   Page 2 of 7
[6]   Lampley arrived at the Madison County Work Release Center on March 11,

      2014. From March 12 to March 29, 2014, the work release center issued

      Lampley approximately twenty (20) conduct reports for violations ranging from

      testing positive for marijuana, to threatening staff. On April 2, 2014, the work

      release officials filed a petition to terminate Lampley from their program

      because of his noncompliance with the rules. On the same day, the trial court

      held an initial hearing on the violation and remanded Lampley to the county

      jail until the violation was resolved.


[7]   The trial court held an evidentiary hearing on the work release violation on

      April 7, 2014. At that time, Lampley admitted to violating the terms of his

      work release and asked the court, even though he had six months remaining on

      his executed sentence, to release him or give him a sanction of thirty days in jail

      before releasing him to probation. The State requested and was granted a

      continuance of the hearing. In the meantime, on April 11, 2014, the probation

      department filed a notice of violation alleging that Lampley had failed to

      successfully complete his executed time on work release.


[8]   On April 14, 2014, the trial court held an initial hearing on the probation

      violation, and the State, without objection from Lampley, amended the notice

      of violation to include the allegation that Lampley failed to “behave well in

      society.” (Tr. 22). The court granted the amendment, entered a denial on

      Lampley’s behalf, and set the matter for an evidentiary hearing on April 21,

      2014.



      Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]   Page 3 of 7
[9]    At the evidentiary hearing, three work release officers testified about a tobacco

       violation and threatening gestures and remarks that Lampley had made toward

       them while he was a resident at the facility.2 On direct-examination, Lampley

       again admitted to violating the rules of the work release facility. On cross-

       examination, he specifically admitted that he had smoked marijuana in

       celebration of leaving the Department of Correction. At the conclusion of

       evidence, the trial court issued the following order entitled “ORDER ON

       VIOLATION OF PROBATION And WORK VIOLATION” [sic]:

                Defendant appears in person and by counsel, Bryan Williams;
                State appears by Deputy [Prosecuting Attorney] Jeffrey
                Lockwood on probation violation and work release evidentiary
                hearing. The Defendant having partially admitted to violation,
                evidence presented in part regarding other allegations. The
                Court finds defendant violated the conditions of work release and
                probation as admitted and as presented in evidence. Sanction
                argued. The Court revokes defendant’s sentence and orders said
                sentence to be served in the Indiana Department of Correction.


[10]   (App. 30). Lampley now appeals.




       2
         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.

       Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]                           Page 4 of 7
                                                     Discussion
[11]   Lampley asserts that the trial court revoked his probation in part because of his

       failure to complete work release and because he failed to behave well in

       society.3 He claims that the trial court erred in two ways: (1) that successfully

       completing work release was not a term of his probation and could not be a

       basis for revocation; and (2) the State presented insufficient evidence proving

       that he did not behave well in society.


[12]              Probation is a matter of grace and a conditional liberty which is a
                  favor, not a right. The trial court determines the conditions of
                  probation and may revoke probation if those conditions are
                  violated. The decision to revoke probation is within the sound
                  discretion of the trial court. And its decision is reviewed on
                  appeal for abuse of discretion. An abuse of discretion occurs
                  when the decision is clearly against the logic and effect of the
                  facts and circumstances before the court. Further, on appeal we
                  consider only the evidence most favorable to the judgment
                  without reweighing that evidence or judging the credibility of the
                  witness. If there is substantial evidence of probative value to
                  support the trial court’s decision that a defendant has violated
                  any terms of probation, the reviewing court will affirm its
                  decision to revoke probation.
       Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012) (internal quotations and

       citations omitted).


[13]   We first note that Lampley is indeed correct in his assertion that the trial court

       cannot revoke his probation for a violation that was not a condition of his




       3
           Lampley does not challenge the revocation of his work release placement.


       Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]       Page 5 of 7
       probation. Atkins v. State, 546 N.E.2d 863, 866 (Ind. Ct. App. 1989) (“A

       defendant’s probation cannot be revoked for an alleged violation of a non-

       existent term of probation”). However, the title and content of the trial court’s

       order suggests that his work release and probation violations were addressed

       separately. More than likely, the State amended the notice of violation at the

       initial hearing because of the realization that, in this instance, Lampley’s

       probation could not be revoked for failing to complete work release

       successfully. Therefore, we do not find that Lampley’s probation was revoked

       for failing to complete work release. As a result, we turn our attention to the

       evidence supporting the revocation of his probation.


[14]   Lampley argues that “the record is barren of any evidence that [he] engaged in

       unlawful conduct . . . .” (Lampley’s Br. 6). We disagree. As we previously

       observed, Lampley admitted at the evidentiary hearing that he smoked

       marijuana in celebration of leaving the Department of Correction, resulting in

       his positive urine screen at work release. Though Lampley was not arrested,

       the State does not have to show that he was convicted of a new crime. Whatley

       v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). Rather, the State can

       demonstrate the commission of a new crime by a preponderance of the

       evidence. Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013). In addition, a trial

       court can revoke probation prospectively, as “a defendant’s ‘probationary

       period’ begins immediately after sentencing.” Crump v. State, 740 N.E.2d 564,

       568 (Ind. Ct. App. 2000) (citing Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct.

       App. 1999)), trans. denied.


       Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]   Page 6 of 7
[15]   Lampley’s confession to smoking marijuana is sufficient evidence to support

       revocation of his probation, and we find no abuse of discretion with the trial

       court’s order. See, e.g., Smith v. State, 504 N.E.2d 333, 334 (Ind. Ct. App. 1987)

       (probation revocation affirmed where defendant confessed to new crime).


[16]   Affirmed.


[17]   Barnes, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 48A04-1405-CR-231 | [Hand-down date]   Page 7 of 7
