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:

DERICK W. STEELE                                   GREGORY F. ZOELLER
Deputy Public Defender                             Attorney General of Indiana
Kokomo, Indiana
                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                            Mar 25 2013, 9:32 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

JESSE R. LUCKEY,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 34A04-1208-CR-399
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE HOWARD SUPERIOR COURT
                           The Honorable William C. Menges, Jr., Judge
                     Cause Nos. 34D01-0803-FD-147 and 34D01-0904-FD-387



                                         March 25, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Jesse R. Luckey (“Luckey”) appeals the trial court’s order revoking his probation

in two underlying cases arising from his convictions for possession of a controlled

substance1 as a Class D felony, possession of marijuana2 as a Class D felony, and

possession of paraphernalia3 as a Class A misdemeanor. In this appeal, Luckey contends

that the trial court utilized an improper burden of proof and that the evidence was not

sufficient to establish that he had violated the conditions of his probation by a

preponderance of the evidence.

      We reverse.

                              FACTS AND PROCEDURAL HISTORY

      In January 2009, Luckey pleaded guilty to possession of a controlled substance

under cause number 34D01-0803-FD-147 (“Cause No. 147”) and was sentenced to three

years with one hundred twenty days executed, sixty days on home detention, and the

balance suspended to probation. In April 2009, Luckey was charged with possession of

marijuana and possession of paraphernalia under cause number 34D01-0904-FD-387

(“Cause No. 387”). A petition to revoke his probation in Cause No. 147 was also filed.

In February 2010 after he admitted to violating his probation, Luckey was ordered to

serve eighteen months of his previously suspended sentence in Cause No. 147. In Cause

No. 387, Luckey pleaded guilty and was sentenced to one year suspended to probation.




      1
          See Ind. Code § 35-48-4-7(a).
      2
          See Ind. Code § 35-48-4-11.
      3
          See Ind. Code § 35-48-4-8.3.

                                          2
        In February 2012, Luckey was charged with criminal mischief as a Class A

misdemeanor in cause number 34D03-1202-CM-143 (“Cause No. 143”), and in April,

2012, he was charged with attempted murder as a Class A felony and aiding, inducing or

causing aggravated battery as a Class B felony in cause number 34D04-1204-MR-57

(“Cause No. 057”). As a result of these new charges, petitions to revoke Luckey’s

probation were filed in Cause Nos. 147 and 387.

        The trial court held a combined hearing on the two revocation petitions in July

2012. At the hearing, the State introduced the Chronological Case Summaries (“CCS”)

from Cause Nos. 143 and 057. Following the conclusion of the hearing, the trial court

entered an amended order in both Cause Nos. 147 and 387 finding “that the Defendant

did violate his probation as alleged,” revoking Luckey’s probation in both cases and

ordering him to serve the time remaining on his previously suspended sentences.

                                    DISCUSSION AND DECISION

        Luckey maintains that the trial court abused its discretion in revoking his

probation. Specifically, Luckey argues that the trial court applied an improper standard

of probable cause to determine that he had committed a new offense and that it should

have utilized preponderance of the evidence as the proper standard. The State contends

that the trial court properly applied a probable cause standard.4

        The decision to revoke probation is within the sound discretion of the trial court,

and its decision is reviewed on appeal for abuse of that discretion. Ripps v. State, 968

        4
          We note that the State filed its appellate brief before our Supreme Court handed down Heaton v.
State, 48S02-1206-CR-350, 2013 WL 812402 (Ind. Mar. 5, 2013).


                                                   3
N.E.2d 323, 326 (Ind. Ct. App. 2012) (citing Cooper v. State, 917 N.E.2d 667, 671 (Ind.

2009) (citations omitted)). An abuse of discretion occurs when the decision is clearly

against the logic and effect of the facts and circumstances before the court. Id. (citing

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). In order to revoke probation, the trial

court must make a factual determination that a violation of a condition of probation

actually occurred, and if a violation is found, then the trial court must determine the

appropriate sanctions for the violation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

       The due process requirements of a probation revocation proceeding are well-

established: Probation is a favor granted by the State, not a right to which a criminal

defendant is entitled. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008) (citing

Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997)), trans. denied. However,

once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id.

Probation revocation implicates a defendant’s liberty interest, which entitles him to some

procedural due process. Id. (citing Parker, 676 N.E.2d at 1085 (citing Morrissey v.

Brewer, 408 U.S. 471, 482 (1972))). Because probation revocation does not deprive a

defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the

full due process rights afforded a defendant in a criminal proceeding. Id.

       Due process requires a written statement by the fact finder regarding the evidence

relied upon and the reasons for revoking probation. Id. at 101. This requirement is

imposed on trial courts to promote accurate fact finding and to ensure the accurate review

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

The rationale underlying the writing requirement in probation revocation proceedings has

                                              4
its genesis in Morrissey where the United States Supreme Court concluded that while an

informal hearing structure is permissible for parole revocation proceedings, it still must

comport with basic notions of due process, including a written statement by the fact

finders as to the evidence relied on and the reasons for revoking parole. 408 U.S. at 488-

89 (emphasis added). In Gagnon v. Scarpelli, the Supreme Court applied the Morrissey

holding to probation revocation proceedings, holding that for purposes of due process

analysis, the two proceedings are the same. 411 U.S. 778, 782 (1973). Our Supreme

Court in Medicus v. State, 664 N.E.2d 1163 (Ind. 1996), applied the Gagnon rule to

probation revocation proceedings. Id. at 1164-65.

       Here, the trial court failed to enter findings of fact regarding the evidence upon

which it relied and its reasons for revoking probation. Rather, it merely made the

conclusory finding that the defendant violated the conditions of his probation. Although

clearly not the preferred way of fulfilling the writing requirement, we have held that

placing the transcript of the evidentiary hearing in the record is sufficient if it contains a

clear statement of the trial court’s reasons for revoking probation. Clark v. State, 580

N.E.2d 708, 711 (Ind. Ct. App. 1991). In the present case, Luckey does not raise an issue

relating to the trial court’s failure to enter written findings setting out the evidence and its

rationale for ordering revocation. Further, it is clear from our review of the record that

the trial court determined that the issue before the trial court was narrow and the evidence

upon which the trial court relied was minimal and not open to varying interpretations.

Accordingly, in the interests of judicial economy, we elect to determine this matter on the

merits rather than remand for the entry of specific findings.

                                               5
         On March 5, 2013, our Supreme Court held that the correct burden of proof for a

trial court to apply in a probation revocation proceeding is the preponderance of the

evidence standard. Heaton v. State, 48S02-1206-CR-350, 2013 WL 812402 (Ind. Mar. 5,

2013).

         Here, the only evidence submitted by the State regarding whether Luckey had

committed a new crime was certified copies of the CCS for Cause Nos. 143 and 057

showing the filing of the charges and the trial court’s probable cause determination. On

the basis of this evidence, the trial court found that Luckey had violated the terms of his

probation by the commission of new offenses. Although the evidence was sufficient for

the trial court to find probable cause that Luckey had committed the new offenses, it was

insufficient to establish the commission of such crimes by a preponderance of the

evidence. Accordingly, we reverse the trial court’s order revoking Luckey’s probation.

         Reversed.

MATHIAS, J., and CRONE, J., concur.




                                            6
