MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Sep 22 2016, 5:42 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick Rafael Burt,                                     September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1512-CR-2310
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause Nos.
                                                         48D03-0701-FB-16
                                                         48D03-0612-FB-566



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 1 of 6
                                Case Summary and Issue
[1]   In March 2015, the State filed a petition to revoke Derrick Burt’s probation in

      two cases, alleging he violated the conditions of probation by committing new

      criminal offenses. The trial court revoked the previously-suspended portion of

      Burt’s sentence in each case, ordering him to serve the entirety of his sentences

      in the Indiana Department of Correction. On appeal, Burt raises the sole issue

      of whether the trial court abused its discretion in revoking his probation.

      Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   In late December 2006, Burt was arrested and charged with armed robbery.

      Less than one month later, Burt was arrested again and charged with armed

      robbery. Burt pleaded guilty to both charges in a single plea agreement and the

      trial court sentenced Burt to two consecutive twenty-year sentences. Each

      sentence required Burt to serve fifteen years in the Department of Correction,

      with five years suspended to probation.


[3]   In March 2015, the trial court held a hearing on Burt’s motion to modify his

      sentence. Burt was transferred from the Miami Correctional Facility to the

      Madison County Jail for his hearing. According to the probable cause affidavit,

      Madison County Jail officials suspected Burt of trafficking heroin into the jail.

      Detective Jake Brooks obtained a warrant to conduct a cavity search of Burt.

      The cavity search revealed a substance wrapped in latex in Burt’s rectum.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 2 of 6
      Detective Brooks examined the substance and found it tested positive for

      heroin. Burt then told Detective Brooks he was exchanging heroin for

      commissary money. Detective Brooks arrested Burt and he was charged with

      dealing heroin as a Level 3 felony and possessing heroin as a Level 6 felony.


[4]   The State filed a Notice of Violation of Suspended/Executed Sentence in both

      cases, alleging Burt violated the conditions of probation by committing new

      criminal offenses. At the probation violation hearing, the State submitted into

      evidence the probable cause affidavit1 prepared and signed by Detective Brooks,

      without objection by Burt. Although Detective Brooks was present in court and

      available to testify, neither the State nor Burt called Detective Brooks to the

      witness stand. Neither party submitted any other evidence. At the conclusion

      of the hearing, the trial court revoked Burt’s suspended sentence in each case,

      stating,


                 [T]he Court finds the defendant has violated the conditions of his
                 probation by possessing heroin. Court finds that the five (5) years
                 suspended sentence that was originally imposed in this Court on
                 December 10, 2007 is now revoked . . . .

      Transcript at 7. Burt now appeals.



                                     Discussion and Decision




      1
          Burt does not challenge the admissibility of the probable cause affidavit.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 3 of 6
[5]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013) (citation omitted). “Probation may be revoked at any time for a violation

      of its terms. This includes revocation prior to the start of probation.”

      Champlain v. State, 717 N.E.2d 567, 571 (Ind. 1999). The trial court has

      discretion to set probation conditions and to revoke probation upon violation of

      a condition. Heaton, 984 N.E.2d at 616. Thus, an appeal from a trial court’s

      finding of a violation and the resulting sanction are reviewed only for an abuse

      of discretion. Id. An abuse of discretion occurs if the decision is clearly against

      the logic and effect of the facts and circumstances or if it is contrary to law. Id.


[6]   Burt’s sole argument on appeal is the trial court abused its discretion by using

      an incorrect legal standard in determining Burt violated probation. Indiana

      Code section 35-38-2-3(f) sets forth the State’s burden of proof regarding an

      allegation of violating probation:

              [T]he state must prove the violation by a preponderance of the
              evidence. The evidence shall be presented in open court. The
              person is entitled to confrontation, cross-examination, and
              representation by counsel.


      Here, Burt argues that the trial court used a “probable cause standard,” rather

      than a preponderance of the evidence standard, in determining he violated his

      probation. Appellant’s Brief at 7. His argument appears to rely on two facts:

      first, the trial court did not specifically reference the applicable burden of proof



      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 4 of 6
      in its finding, and second, the only evidence advanced for the trial court’s

      consideration was the probable cause affidavit.


[7]   While Burt is correct that the trial court did not specifically state it found he

      violated probation “by a preponderance of the evidence,” it is clear from the

      record the trial court was aware the parties convened for a probation violation

      hearing, and not a probable cause hearing. Before the hearing began, the

      following conversation between defense counsel and the trial court occurred:


              The Court: It’s probation violation?
              Defense Counsel: Yes your Honor.
              The Court: Is this a hearing or admission?
              Defense Counsel: It’s a hearing.


      Tr. at 4. In addition, Burt points to no authority requiring the trial court to state

      the applicable burden of proof in a probation violation hearing.


[8]   Further, the trial court could easily conclude by a preponderance of the

      evidence Burt violated his probation. The State alleged Burt committed two

      new criminal offenses in violation of the conditions of probation. In support, it

      offered the signed and sworn probable cause affidavit of Detective Brooks, who

      had personally searched Burt and found heroin. See Whatley v. State, 847

      N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (holding the evidence contained in a

      probable cause affidavit prepared and signed by the officer who personally

      found evidence of a crime was sufficient to support revoking probation). The

      affidavit was admitted into evidence, without objection by Burt. Moreover,

      Detective Brooks was present in court and available to testify, but Burt declined
      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 5 of 6
       the trial court’s invitation to cross-examine the detective. For these reasons, we

       conclude the trial court did not abuse its discretion when it found Burt violated

       his probation.



                                               Conclusion
[9]    The trial court did not abuse its discretion when it revoked Burt’s probation,

       and therefore we affirm.


[10]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2310 | September 22, 2016   Page 6 of 6
