MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                       Aug 20 2015, 8:43 am
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
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daquion L. Shears,                                       August 20, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1501-CR-31
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1402-FD-170



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015    Page 1 of 9
                                             Case Summary
[1]   Daquion L. Shears appeals the trial court’s revocation of his probation. Shears

      claims that he was not afforded adequate due process during the revocation

      hearing and that the evidence was insufficient to support the revocation.

      Finding that he was afforded adequate due process and that the evidence was

      sufficient, we affirm.


                                 Facts and Procedural History
[2]   On July 3, 2014, Shears pled guilty to class D felony criminal recklessness and

      class A misdemeanor carrying a handgun without a license in the current case,

      number 02D04-1402-FD-170 (“Cause FD-170”). As part of the partially-

      suspended two-year sentence imposed for those crimes, Shears was ordered to

      serve a one-year term of probation beginning on October 8, 2014. On October

      17, 2014, the State filed a petition for probation revocation alleging that Shears

      battered the mother of his child and failed to report for supervision as

      instructed. The State subsequently filed an amended petition for probation

      revocation on November 7, 2014, alleging that Shears also committed the

      offenses of level 6 felony auto theft, class B misdemeanor false informing, class

      B misdemeanor possession of marijuana, and class C misdemeanor operating a

      vehicle without ever receiving a license. Formal criminal charges were filed for

      those crimes on November 13, 2014, under cause number 02D06-1411-F6-408

      (“Cause F6-408”).




      Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015   Page 2 of 9
[3]   Cause F6-408 proceeded to jury trial on January 6, 2015. The jury found

      Shears not guilty of auto theft, but guilty of false informing and operating a

      vehicle without ever receiving a license. The possession of marijuana charge

      was dismissed. Immediately following the jury trial, the trial court held a

      consolidated hearing to determine sentencing in Cause F6-408 and probation

      revocation in Cause FD-170. Upon motion by the State, and without objection

      from Shears, the trial court took judicial notice of Shears’s convictions in Cause

      F6-408 and incorporated all the evidence from the jury trial into the revocation

      proceedings. Based upon the incorporated evidence, the trial court concluded

      that Shears violated his probation and ordered him to serve one year of his

      previously suspended sentence in Cause FD-170. Shears appeals the revocation

      of his probation.


                                     Discussion and Decision
[4]   “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). It is within the trial court’s discretion to determine the conditions of

      probation and to revoke probation if those conditions are violated. Heaton v.

      State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial court’s decision 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 before the

      court. Id. We neither reweigh evidence nor reassess witness credibility, and we

      consider only the evidence favorable to the trial court’s judgment. Id. If there is

      Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015   Page 3 of 9
      substantial evidence to support the trial court’s decision that a probationer has

      violated any terms of probation, we will affirm the decision to revoke

      probation. Id.


             Section 1 – Shears was afforded adequate due process.
[5]   We first address Shears’s claim that he was denied procedural due process

      during his revocation hearing. Probation revocation is a two-step process.

      Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the trial court must

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

      actually occurred. Id. If a violation is proven, then the trial court must

      determine if the violation warrants revocation of the probation. Id. Although

      probationers are not entitled to the full spectrum of constitutional rights

      afforded to a defendant in a criminal trial, there remain some due process limits

      on the revocation of probation. Id.             The minimum requirements of due

      process that are afforded to a 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. Id.; see also Ind. Code § 35-38-2-3(f) (providing that,

      absent waiver, a probationer is entitled to a revocation hearing in open court,

      confrontation, cross-examination, and representation by counsel).


[6]   Shears acknowledges that he received written notice of his alleged violations of

      probation, but claims that he was not afforded the additional due process


      Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015   Page 4 of 9
      protections to which he was entitled. First, we note that, upon motion by the

      State at the outset of the consolidated sentencing and revocation hearing, and

      without any objection from Shears, the trial court took judicial notice of and

      incorporated all of the evidence from its prior proceeding in which Shears was

      found not guilty of level 6 felony auto theft, and guilty of class B misdemeanor

      false informing and class C misdemeanor operating a vehicle without ever

      receiving a license. We have held that this procedure does not violate due

      process. See Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007)

      (revocation court may incorporate and admit testimony and evidence presented

      at prior criminal proceeding before same court); Bane v. State, 579 N.E.2d 1339,

      1341-42 (Ind. Ct. App. 1991) (revocation court may take judicial notice of the

      outcome, i.e., a conviction, in a proceeding that had previously been before the

      same court), trans. denied (1992).


[7]   Moreover, when a probationer admits to the probation violation, the procedural

      due process safeguards listed above and an evidentiary hearing are not

      necessary, and the court can proceed to the second step of the inquiry and

      determine whether the violation warrants revocation. Woods, 892 N.E.2d at

      640. But, “even a probationer who admits the allegations against him must still

      be given an opportunity to offer mitigating evidence suggesting that the

      violation does not warrant revocation.” Id. (citing United States v. Holland, 850

      F.2d 1048, 1051 (5th Cir. 1988)).


[8]   Our review of the record reveals that Shears both admitted to violating his

      probation and was given the opportunity to offer mitigating evidence. After the

      Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015   Page 5 of 9
      trial court read the allegations of the revocation petition regarding Shears’s

      commission of the new criminal offenses on the record and incorporated the

      evidence from the prior proceeding, defense counsel responded, “He was

      acquitted of the Felony. He was indeed convicted of the two (2)

      Misdemeanors, so I guess I’ll leave it in the Court’s discretion.” Tr. at 125-26.


[9]   We view defense counsel’s statement as an admission by Shears that he violated

      the conditions of his probation by committing, at the very least, two new

      crimes, and therefore the procedural due process safeguards noted above were

      not necessary and the trial court could proceed to the second step of the analysis

      and determine if the violation warranted revocation. See Parker v. State, 676

      N.E.2d 1083, 1086 (Ind. Ct. App. 1997) (probation revocation hearing is a civil

      proceeding, and a probationer is bound by the admissions and actions of his

      attorney, just as any civil litigant would be). We also view counsel’s statement

      as a knowing decision by Shears to forgo offering mitigating evidence regarding

      his commission of these crimes, despite the opportunity to do so, and to instead

      acquiesce to the discretion of the trial court regarding whether his violations

      warranted revocation. Further, as we will discuss more fully below, when the

      trial court proceeded to consider the incorporated evidence and find by a

      preponderance of that evidence that Shears also committed auto theft, Shears




      Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015   Page 6 of 9
       again offered no mitigating evidence suggesting that revocation was

       unwarranted based upon his commission of that crime. 1


[10]   Although Shears makes much ado about the informality of his revocation

       hearing, “[j]udicial economy mandates that some flexibility be taken in the

       probation revocation proceedings.” Lightcap, 863 N.E.2d at 911. Indeed, due

       process “‘is not so rigid as to require that the significant interests in informality,

       flexibility, and economy must always be sacrificed.’” Id. (quoting Gagnon v.

       Scarpelli, 411 U.S. 778, 788 (1973)). Here, Shears was afforded the full array of

       due process rights at his criminal trial and, during the consolidated proceeding

       that followed immediately thereafter, he admitted to the violation of his

       probation and acquiesced to the procedures employed by the trial court. Under

       the circumstances, we cannot say that Shears was denied procedural due

       process.


           Section 2 – The State presented sufficient evidence to support
                             the probation revocation.
[11]   Shears maintains that the evidence was insufficient to support the trial court’s

       revocation of his probation. Because a probation revocation is civil in nature,

       the State need only prove the alleged probation violation by a preponderance of

       the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). In

       determining whether sufficient evidence supports a probation revocation, we



       1
        We note that Shears makes no attempt on appeal to explain any of his probation violations or to point to
       evidence in mitigation.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015              Page 7 of 9
       apply the same standard as with any other sufficiency matter. Martin v. State,

       813 N.E.2d 388, 389 (Ind. Ct. App. 2004). We consider only the evidence most

       favorable to the State, along with the reasonable inferences to be drawn

       therefrom. Id. If a person on probation commits another crime, the trial court

       may revoke probation. See Ind. Code § 35-38-2-1(b).


[12]   It is well settled that the State need not demonstrate that the probationer was

       convicted of a new crime. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct.

       App. 2006). Rather, the State need only demonstrate the commission of that

       new crime by a preponderance of the evidence. See Heaton, 984 N.E.2d 614,

       617 (Ind. 2013). The evidence presented at the jury trial and incorporated into

       the revocation hearing indicated that police found Shears in possession of a

       vehicle that had been reported stolen. Loren Allen, the owner of the vehicle,

       testified that Shears took her car without her permission and that Shears

       deprived her of the use of her car for more than one day. Thus, although

       Shears was acquitted of auto theft pursuant to a beyond-a-reasonable-doubt

       standard applicable during the jury trial, the incorporated evidence was

       sufficient to support the trial court’s conclusion that Shears committed the

       offense pursuant to a preponderance-of-the-evidence standard applicable in

       probation revocation proceedings. 2 Further, the incorporated evidence of his

       convictions for the two misdemeanor offenses beyond a reasonable doubt,



       2
        A person who knowingly or intentionally exerts unauthorized control over the motor vehicle of another
       person, with intent to deprive the owner of the vehicle’s value or use commits level 6 felony auto theft. Ind.
       Code § 35-43-4-2.5.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1501-CR-31| August 20, 2015                 Page 8 of 9
       coupled with his admission to committing the same, is more than sufficient to

       support the revocation of his probation.


[13]   Shears argues that the State failed to “present any evidence” that he violated his

       probation by committing new crimes because the State failed to introduce the

       amended petition for probation revocation or the specific conditions of his

       probation into evidence at the revocation hearing. Appellant’s Br. at 7. We

       note that the trial court read the allegations of the amended revocation petition

       on the record at the outset of the hearing, and Shears cites no authority, and we

       are unaware of any, that requires more. Also, the condition that a defendant on

       probation refrain from criminal conduct is imposed by law, even in the absence

       of any express condition of probation imposed by the court. Lucas v. State, 501

       N.E.2d 480, 481 (Ind. Ct. App. 1986). Shears’s arguments are unsupported and

       unpersuasive. The State presented sufficient evidence to support the trial

       court’s revocation of probation. The trial court’s revocation of Shears’s

       probation is affirmed.


[14]   Affirmed.


       May, J., and Bradford, J., concur.




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