                                                              FILED
                                                         Jun 23 2016, 8:35 am
MEMORANDUM DECISION
                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
Pursuant to Ind. Appellate Rule 65(D),                         and Tax Court

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
Thomas K. Reynolds                                       Gregory F. Zoeller
Lebanon, Indiana                                         Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, IN



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Byrd,                                               June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         06A01-1509-CR-1509
        v.                                               Appeal from the Boone Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew C.
Appellee-Plaintiff                                       Kincaid, Judge
                                                         Trial Court Cause No.
                                                         06D01-1407-FD-135



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 1 of 8
                                             Case Summary
[1]   Eric M. Byrd appeals the trial court’s revocation of his probation. He contends

      that there was insufficient evidence to support the trial court’s finding that he

      violated his probation. He also contends that the trial court abused its

      discretion in revoking his probation and imposing 1059 days of his previously

      suspended sentence. Finding the evidence sufficient and no abuse of discretion,

      we affirm.


                                 Facts and Procedural History
[2]   The State charged Byrd with class D felony theft. On March 9, 2015, Byrd

      entered into a plea agreement with the State which provided that he would

      receive a three year sentence, with 180 days executed and the remainder

      suspended to probation. The agreement provided that Byrd would serve his

      executed sentence in community corrections, if he qualified, and that he would

      pay restitution to his victims. On June 12, 2015, the trial court accepted the

      guilty plea and sentenced Byrd accordingly. During sentencing, Byrd was

      advised of the conditions of his probation. Among the conditions of Byrd’s

      probation was Term one, which required Byrd to abide by all laws and to advise

      probation within twenty-four hours if he was arrested; Term two, which

      required Byrd to keep all meetings with probation and community corrections;

      and Term thirty-three, which required Byrd to complete all mental health

      counseling and follow the recommendations of his mental health care provider.




      Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 2 of 8
[3]   Immediately following the sentencing hearing, Byrd went to the probation

      office to complete his probation paper work, determine if he was qualified for

      community corrections, and to receive his electronic monitoring bracelet.

      Annette Bowden, Director of Operations for Boone County Community

      Corrections, met with Byrd and recommended that Byrd receive a mental

      health evaluation to be certain that he qualified for community corrections.

      Bowden allowed Byrd to review and sign the contract for the monitoring

      bracelet. Bowden further inquired regarding the status of Byrd’s driver’s

      license, and he told her that it was suspended.


[4]   Because Byrd arrived at the probation office shortly before the staff’s lunch, he

      was given his probation paperwork and asked to return after the lunch break

      was over. Upon returning from lunch, Ashley McClure, the case manager that

      met with Byrd to hook up his monitoring bracelet, witnessed him in the driver’s

      seat of a vehicle. McClure was present when Byrd revealed that his driver’s

      license was suspended, but she also checked his driving record to confirm.

      After completing his bracelet hook-up, McClure observed Byrd leaving the

      building, again getting into the driver’s seat of a vehicle, and driving away.

      McClure called the Lebanon Police Department to report Byrd’s crime. Police

      subsequently pulled Byrd over and gave him a citation for driving with a

      suspended license. Byrd was charged with driving while suspended under

      cause number 06C01-1507-CM-357.


[5]   While Byrd was at the probation office, an appointment was set for June 18,

      2015, for him to attend a meeting regarding mental health counseling. Byrd

      Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 3 of 8
      failed to attend that meeting. After Byrd failed to attend that meeting, the

      mental health professionals attempted to contact him at the phone number he

      had provided but the number was invalid.


[6]   Also while Byrd was at the probation office, an appointment was set for him to

      meet with his probation officer, Suzan Shrock-Gideon, on June 22, 2015. Byrd

      failed to appear for that meeting and he did not attempt to reschedule the

      meeting.


[7]   On June 24, 2015, Boone County Community Corrections filed a notice of

      violation alleging that Byrd had violated the terms of his community

      corrections by failing to attend his scheduled mental health appointment, and

      by receiving a citation for driving while suspended. On June 26, 2015, the

      probation department filed a petition to revoke probation also alleging that

      Byrd violated his probation by failing to attend his scheduled mental health

      appointment, and additionally alleging that Byrd failed to attend a scheduled

      appointment with his probation officer. The probation department

      subsequently amended its petition to revoke to include an allegation that Byrd

      had committed class A misdemeanor driving while suspended.


[8]   The trial court held an evidentiary hearing on September 1, 2015. At the time,

      Byrd had already served his executed sentence in community corrections. The

      trial court found by a preponderance of the evidence that Byrd violated the

      conditions of his probation. Accordingly, the trial court revoked Byrd’s




      Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 4 of 8
       probation and ordered him to serve 1059 days of his previously suspended

       sentence in the Department of Correction. This appeal ensued.


                                      Discussion and Decision
[9]    “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). The trial court has been allotted discretion to determine the conditions

       of probation, and may revoke probation if the determined conditions are

       violated. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial

       court’s decisions to revoke probation for an abuse of discretion. Ripps v. State,

       968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse of discretion occurs when

       the court’s decision is clearly against the logic and effect of the facts and

       circumstances. Prewitt, 878 N.E.2d at 188.


            Section 1 – Sufficient evidence supports the trial court’s
                   finding that Byrd violated his probation.
[10]   Byrd challenges the sufficiency of the evidence to support the trial court’s

       finding that he violated his probation. This Court has explained,

               A probation revocation proceeding is in the nature of a civil
               proceeding, and, therefore, the alleged violation need be proved
               only by a preponderance of the evidence. Violation of a single
               condition of probation is sufficient to revoke probation. As with
               other sufficiency issues, we do not reweigh the evidence or judge
               the credibility of witnesses. We look only to the evidence which
               supports the judgment and any reasonable inferences flowing
               therefrom. If there is substantial evidence of probative value to


       Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 5 of 8
               support the trial court's decision that the probationer committed
               any violation, revocation of probation is appropriate.


       Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (citations omitted),

       trans. denied (2012).


[11]   Here, the State alleged, and the trial court found, that Byrd violated three

       conditions of his probation. Byrd argues that the State presented insufficient

       evidence to show that he violated any condition. However, our review of the

       record reveals that during the revocation hearing, Byrd effectively admitted that

       he violated his probation by committing the new offense of driving while

       suspended. See Tr. at 46. As stated above, violation of a single condition of

       probation is sufficient to support the revocation of probation. See Jenkins, 956

       N.E.2d at 148. Thus, this violation, by itself, is sufficient to support the

       revocation of Byrd’s probation and we need not address his additional

       sufficiency of the evidence claims.


[12]   In any event, the evidence is sufficient to support the trial court’s finding that

       Byrd also violated his probation by failing to keep all meetings with his

       probation officer and by failing to complete mental health counseling. Byrd’s

       probation officer testified that, immediately following sentencing on June 12,

       2015, Byrd personally appeared at the probation office and was assigned an

       appointment time on June 22, 2015, to meet with her. Byrd failed to attend the

       meeting. Similarly, the record is undisputed that Byrd had an appointment for

       June 18, 2015, to meet with mental health professionals, but he failed to attend

       that meeting and could not be reached by phone. Although Byrd directs us to
       Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 6 of 8
       his self-serving testimony in which he gives excuses for his failures, this is

       simply a request for us to reweigh the evidence, which we may not do. The

       State presented sufficient evidence to support the trial court’s determination by

       a preponderance of the evidence that Byrd violated his probation by committing

       a new crime, failing to keep all meetings with his probation officer, and failing

       to complete mental health counseling.


          Section 2 – The trial court did not abuse its discretion in
       revoking Byrd’s probation and ordering him to serve 1059 days
                   of his previously suspended sentence.
[13]   Probation revocation involves a two-step process. “First, the court must make a

       factual determination that a violation of a condition of probation actually

       occurred. If a violation is proven, then the trial court must determine if the

       violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d

       533, 537 (Ind. Ct. App. 2009), trans. denied. Where there is substantial evidence

       of probative value that a defendant violated any of the terms of his probation,

       we will uphold the trial court’s revocation decision. Woods v. State, 892 N.E.2d

       637, 639 (Ind. 2008). If the court determines probation has been violated it may

       continue the person on probation, extend the probationary period for no more

       than a year beyond the original probationary period, or order execution of all or

       part of the previously suspended sentence at the initial hearing. Ind. Code § 35-

       38-2-3(h). Where a trial court has exercised its grace in granting a defendant

       probation rather than incarceration, it has considerable leeway in deciding how

       to proceed when the defendant then violates the conditions of his probation.


       Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 7 of 8
       Prewitt, 878 N.E.2d at 188. We review a trial court’s sentencing decision for

       probation violations for an abuse of discretion. Heaton, 984 N.E.2d at 616.


[14]   Byrd’s argument that the trial court abused its discretion in revoking his

       probation is premised upon his claim of insufficient evidence, which we have

       already decided against him. Thus, we find no abuse of discretion in the trial

       court’s decision to revoke his probation. Still, Byrd contends that imposition of

       virtually his entire suspended sentence was unwarranted given the nature of his

       violations and other mitigating circumstances, such as the fact that this was his

       first time violating his probation. However, the record indicates that Byrd

       violated the conditions of his probation three times within a mere ten days of

       his sentencing. Indeed, one of his violations occurred within hours of

       sentencing. The object of probationary terms and conditions is to ensure that

       probation serves as a period of genuine rehabilitation. By his behavior, Byrd

       has demonstrated that he is not committed to abide by the terms of his

       probation. Under the circumstances, we cannot say that the trial court abused

       its discretion in revoking Byrd’s probation and ordering him to serve 1059 days

       of his previously suspended sentence.


[15]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016   Page 8 of 8
