MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 Mar 31 2016, 8:53 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                              CLERK
                                                                                  Indiana Supreme Court
court except for the purpose of establishing                                         Court of Appeals
                                                                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Richard Walker                                          Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Terrance Smoots, Jr.,                                   March 31, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1506-CR-746
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark Dudley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C06-1112-FB-2280



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016            Page 1 of 5
                                       Statement of the Case
[1]   Terrance Smoots, Jr. appeals the trial court’s revocation of his probation.

      Smoots raises a single issue for our review, namely, whether the trial court

      denied him his due process rights under the Fourteenth Amendment. We

      affirm.


                                 Facts and Procedural History
[2]   On July 30, 2012, Smoots pleaded guilty to robbery, as a Class C felony.

      Pursuant to a plea agreement, the trial court sentenced Smoots as follows: five

      years at the Department of Correction (“DOC”); one year in community

      corrections; and two years on probation. On December 16, 2014, after having

      completed the executed portion of his sentence, Smoots began his one-year

      work release sentence at the Madison County Work Release Center (“Work

      Release Center”). Within two months of being on work release, Smoots had

      repeated incidents of violating work release rules. On February 13, 2015, the

      State filed a petition to terminate Smoots from Work Release due to Smoots

      leaving work without authorization, and the trial court issued a warrant for his

      arrest. That same day, Smoots reported to officers at the Work Release Center

      that he had vomited blood, and an officer transported Smoots to a local

      hospital. Smoots did not return to the Work Release Center upon his discharge

      from the hospital.


[3]   On May 7, 2015, Officers Dustin Armstrong and Joe Garrett of the Anderson

      City Police Department questioned Smoots during a traffic stop and noticed an


      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016   Page 2 of 5
      odor of marijuana coming from Smoots’ vehicle. Smoots gave the officers a

      fake name, and, when the officers learned of Smoots’ true identity, Smoots fled.

      Officers eventually found Smoots and took him into custody without further

      incident.


[4]   On May 13, the State filed a second petition to terminate Smoots from the

      Work Release program based on Smoots’ failure to do the following: return to

      lawful detention despite notice provided on February 13 and 18; failure to

      return to lawful detention, as a Level 6 felony; escape, as a Level 5 felony; false

      informing, as a Class A misdemeanor; and possession of marijuana, as a Class

      A misdemeanor.


[5]   Following a hearing on the State’s petition to terminate Smoots from Work

      Release, the trial court found that Smoots had failed to successfully complete

      his work release and had failed to return to lawful detention. The trial court

      sentenced Smoots to three years executed in the DOC with 126 days credit

      time. This appeal ensued.


                                     Discussion and Decision
[6]   Smoots contends that he was denied due process when the trial court denied

      him the ability to present mitigating evidence prior to the revocation of his

      probation. While distinguished from criminal trials, probation revocation

      hearings are regulated by the Due Process Clause of the Fourteenth

      Amendment. U.S. Const. amend. XIV; Medicus v. State, 664 N.E.2d 1163, 1164

      (Ind. 1996). The minimum requirements of due process provided to a

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016   Page 3 of 5
      probationer at a revocation hearing include: “(a) written notice of the claimed

      violations of probation; (b) disclosure of the evidence against him; (c) an

      opportunity to be heard and present evidence; (d) the right to confront and

      cross-examine adverse witnesses; and (e) a neutral and detached hearing body.”

      Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).


[7]   For purposes of appellate review, we review a hearing on a petition to revoke a

      placement in a community corrections program the same way we review a

      ruling on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind.

      1999). “A defendant is not entitled to serve a sentence in either probation or a

      community corrections program. Rather, placement in either is a ‘matter of

      grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting

      Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)).


[8]   Smoots’ only argument on appeal is that the trial court denied him due process

      when the court allegedly refused to allow him an opportunity to present

      mitigating evidence to prove that the violations did “not warrant revocation.”

      Appellant’s Br. at 9. However, Smoots had a full evidentiary hearing, was

      represented by counsel, and was given the opportunity to present evidence.

      After the State rested its case, Smoots’ defense counsel, rather than presenting

      evidence, went straight into closing argument. Nothing in the transcript shows

      that defense counsel attempted to present mitigating evidence but was denied

      such an opportunity by the trial court. Because the trial court afforded Smoots

      an evidentiary hearing, including an opportunity to present mitigating evidence

      at that hearing, he has not shown that the trial court denied him his right to due

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016   Page 4 of 5
       process. See, e.g., Vernon v. State, 903 N.E.2d 533, 537 (Ind. Ct. App. 2009)

       (holding that the trial court did not violate the defendant’s due process rights

       because the defendant was afforded an evidentiary hearing and, thus, was

       provided an opportunity to present mitigating evidence).


[9]    Moreover, Smoots does not explain on appeal what mitigating evidence he

       would have presented to the trial court to prove that revocation of his probation

       was not warranted. “[A] bald assertion of prejudice is insufficient to overcome

       the burden placed upon the complaining party to affirmatively show prejudice.

       This court will not presume prejudice.” Plan-Tec, Inc. v. Wiggins, 443 N.E.2d

       1212, 1233 (Ind. Ct. App. 1983). Thus, even if the trial court had denied him

       the opportunity to present evidence, which it did not, Smoots has not shown

       that the alleged error prejudiced him. The trial court did not err when it

       revoked Smoots’ probation.1


[10]   Affirmed.


       Riley, J., and May, J., concur.




       1
           Smoots does not challenge the sentence the trial court imposed upon revoking his probation.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016              Page 5 of 5
