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                             Oct 03 2013, 9:47 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK A. BATES                                     GREGORY F. ZOELLER
Schererville, Indiana                             Attorney General of Indiana

                                                  ANDREW FALK
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ELBERT G. ELLIOTT,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 45A04-1212-CR-659
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Clarence D. Murray, Judge
                               Cause No. 45G02-0512-FC-160



                                       October 3, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On March 1, 2007, Appellant-Defendant Elbert Elliott entered into a plea

agreement with Appellee-Plaintiff the State of Indiana regarding a fifty-one count

allegation which included various acts of fraud, misappropriation, and conversion of

funds. Pursuant to the agreement, Elliott pled guilty to eight counts of Class D felony

theft and agreed to make monthly payments against his total restitution figure of

$538,176.40 in exchange for the State’s dismissal of the remaining charges. The plea

agreement also provided for a fifteen-year sentence, with five years of incarceration and

ten years suspended to probation. While on probation, Elliott failed to make monthly

restitution payments and tested positive for cocaine use. The trial court revoked Elliott’s

probation and sentenced him to serve the remaining ten years of his suspended term.

       On appeal, Elliott contends that the terms of restitution imposed by the trial court

were impermissibly vague and, therefore, that his probation cannot be revoked based on

their violation. Elliott also argues that the trial court did not produce a sufficient written

finding explaining its reasoning for revoking Elliott’s probation based on drug use.

Concluding that the trial court met the written statement requirement, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The stipulated factual basis entered during the May 11, 2007 guilty plea hearing

provides that, between the dates of January 18, 2001, and June 11, 2004, Elliott

conducted the business of Worldwide Gold Emporium Inc., serving as the company’s

founder, president, chairman, and chief executive officer. During that time, Elliott “cold

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called” individuals offering investment opportunities in the form of stock options and

gold, platinum, and silver commodities. Appellant’s App. p. 81. Elliott represented to

these potential investors that they could redeem their monetary investment or commodity

at any time upon request.         Elliott knowingly and intentionally misappropriated

$538,176.40 in funds from at least seventeen investors when he failed to return any

portion of their investments upon request. Many of the victims were elderly and had

been defrauded on prior occasions.

       On December 1, 2005, the State charged Elliott with forty-three counts, alleging,

inter alia, fraud, misappropriating or converting funds of another person, giving false or

misleading information, and offering and selling unregistered securities, all Class C

felonies. On March 1, 2007, the State filed an Amended Information adding eight counts

of Class D felony theft. On March 1, 2007, Elliott pled guilty to the eight counts of theft

in exchange for the State’s dismissal of the remaining charges.

       On May 10, 2007, pursuant to the terms of the plea agreement, the trial court

sentenced Elliott to fifteen years of incarceration with the ten years suspended to

probation.   The trial court conditioned Elliott’s probation on maintaining gainful

employment and making monthly restitution payments to the seventeen victims, to be

divided evenly, until the total amount of $538,176.40 was fully repaid. An additional

condition of Elliot’s probation was that he would not use, purchase, or possess any illegal

drugs or controlled substances.

       Elliott began serving the probation portion of his sentence on April 27, 2009. On

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September 7, 2010, the State filed a petition to revoke Elliott’s probation due to his

failure to make restitution payments. In the sixteen months after being released on

probation, Elliott had paid only $60.00 toward his half-a-million dollar restitution

obligation. On May 17, 2011, the State filed an amended petition, alleging a failed drug

test had revealed that Elliott had used cocaine.

       Elliott did not deny the allegations but presented mitigating factors at an

evidentiary hearing on June 21, 2011. During this hearing, Elliott expressed confusion as

to how he may have ingested cocaine. He posited that it may have been due to buying

“street cigarettes” that were, unbeknownst to him, laced with cocaine. However, Elliott

did not contest the validity of the positive drug test. Elliott also explained that his

difficulty making restitution payments was due to an inability to obtain steady

employment.

       After conducting three separate hearings on the State’s request for revocation, the

trial court revoked Elliott’s probation in its August 16, 2012 sentencing order, based on

drug use and willful failure to pay restitution. The trial court subsequently ordered that

Elliott be incarcerated for the remaining ten years of his sentence.

                            DISCUSSION AND DECISION

       Elliott challenges the trial court’s decision to revoke his probation. The decision

to revoke probation is within the sole discretion of the trial court. Reyes v. State, 868

N.E.2d 438, 440 (Ind. 2007). On appeal, the trial court’s decision is reviewed for an

abuse of that discretion. Woods v. State, 892 N.E.2d 637, 639-40 (Ind. 2008). An abuse

                                             4
of discretion occurs if the decision is “clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual deductions to be

drawn therefrom.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006).

       Elliot contends that the trial court abused its discretion by failing to make a

sufficient written finding explaining that its decision to revoke probation was based on

his positive drug test. Specifically, Elliott claims that the magistrate made no written

findings about the drug usage aside from her instruction to the clerk “to prepare an

Electronic Abstract of Judgment that indicates the Petition to Revoke Probation was

granted based on drug use and willful failure to pay restitution.” Appellant’s App. p.

118.

       Due process requires “a written statement by the factfinder as to the evidence

relied on and reasons for revoking probation.” Terrell v. State, 886 N.E.2d 98, 101 (Ind.

Ct. App. 2008) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)), trans. denied.

However, “when a probationer admits to the violations, the procedural safeguards of

Morrissey and the evidentiary hearing are not necessary.” Parker v. State, 676 N.E.2d

1083, 1085 (Ind. Ct. App. 1997). Here, Elliott admitted to failing a drug test during the

June 21, 2011 evidentiary hearing and did not contest the testing procedure or validity of

the results. Rather, Elliott attempted to mitigate the significance of the violation by

explaining that the use was unintentional. Good faith and lack of willfulness, however,

do not preclude finding a probationary violation. Woods, 892 N.E.2d at 641 (citing U.S.

v. Warner, 830 F.2d 651, 657 (7th Cir. 1987)). In any event, the trial court was under no

                                              5
obligation to credit Elliott’s explanation. In light of Elliott’s admission, we conclude that

no written statement was necessary.

       Furthermore, our review of the record reveals that the trial court indeed tendered a

sufficient written explanation. The Supreme Court explained the rationale behind the

written statement requirement in Black v. Romano 471 U.S. 606, 614 (1985): “The

written statement required by Gagnon and Morrissey helps to insure accurate factfinding

with respect to any alleged violation and provides an adequate basis for review to

determine if the decision rests on permissible grounds supported by the evidence.” In

Clark v. State 580 N.E.2d 708, 711 (Ind. Ct. App. 1991), this court determined that a

written transcript of the revocation hearing can meet the Morrissey written statement

requirement. There, we explained that the written statement requirement is a “procedural

device” designed to aid factfinding and accurate appellate review, not to “intrud[e] upon

the discretionary nature of revocation proceedings.” Id. Here, the transcript of the June

21, 2011 evidentiary hearing provides “a cogent statement in writing of the findings"

surrounding Elliott’s probation violations. Id.       From these facts, we have ample

information to discern the foundation and reasoning for the trial court’s decision to

revoke. As such, we conclude that the transcript provides a sufficient written statement

of the evidence relied upon by the trial court.

       Moreover, in its September 27, 2012 sentencing order, the trial court specifically

indicated that “the Petition to Revoke Probation was granted based on drug use and

willful failure to pay restitution.” Appellant’s App. p. 118.        The written statement

                                              6
requirement is not so arduous as to require trial courts to spell out a plainly evident

rationale. As such, we find that the transcribed evidentiary hearing, coupled with the trial

court’s sentencing order, meets the Morrissey requirement.

       “A trial court may revoke a person’s probation upon evidence of the violation of a

single term of probation.” Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App.

2001). Upon finding that the trial court did not abuse its discretion in revoking Elliott’s

probation for drug use, it is unnecessary to address his remaining contentions.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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