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

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ZACHARY A. WITTE                                GREGORY F. ZOELLER
Locke & Witte                                   Attorney General of Indiana
Fort Wayne, Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                                 FILED
                                                                              Nov 05 2012, 9:49 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




MAURICE HIGGINS,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A03-1204-CR-189
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D05-1111-FD-1526




                                     November 5, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       Maurice Higgins’s probation was revoked and the trial court ordered that he serve

the entirety of his previously-suspended sentence at the Department of Correction

(“DOC”).    Higgins appeals the trial court’s disposition, arguing revocation of his

probation and the order that he serve his entire suspended sentence at the DOC was an

abuse of the trial court’s discretion. Concluding the trial court did abuse its discretion,

we reverse and remand.

                               Facts and Procedural History

       On December 1, 2011, Higgins entered a plea of guilty to invasion of privacy and

was sentenced to one year and 183 days, all suspended to probation. One of the terms

and conditions of his probation was that he maintain good behavior. In January of 2012,

Higgins was arrested and charged with invasion of privacy. The State filed a petition to

revoke his probation for violating the good behavior condition.

       The 2012 invasion of privacy charge was tried to a jury, which found Higgins not

guilty. Immediately following the verdict, the trial court, at the request of the parties,

ruled on the probation revocation based on the evidence presented during trial. The trial

court found that “[t]he Petition alleges on January 21st of this year you were arrested for

Invasion of Privacy, a Class D Felony . . . . Based on the evidence that I’ve heard I

would find by a preponderance of the evidence that you were in fact arrested for Invasion

of Privacy. Order the suspended sentence revoked.” Transcript at 94. In order to

determine Higgins’s eligibility for alternative sentencing, however, the trial court set the

matter over for a hearing at a later date. On April 10, 2012, the parties again appeared in

court and informed the trial court that Higgins had been denied for both home detention
                                             2
and work release programs. Finding Higgins ineligible for alternative sentencing, the

trial court ordered him committed to the DOC for one year and 183 days, with credit for

pre-trial time served. Higgins now appeals this disposition.

                                 Discussion and Decision

                                  I. Standard of Review

       Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134

(Ind. Ct. App. 2012), trans. denied. First, the court must make a factual determination

that a violation of a condition of probation has occurred. Id. Second, the trial court must

determine if the violation warrants revocation of the probation. Ripps v. State, 968

N.E.2d 323, 326 (Ind. Ct. App. 2012). Upon revoking probation, the trial court may

impose one of several sanctions provided by statute. Alford, 965 N.E.2d at 134; see also

Ind. Code § 35-38-2-3(h). We review a trial court’s sentencing decisions for probation

violations for an abuse of discretion. Alford, 965 N.E.2d at 134. An abuse of discretion

occurs when the decision is clearly against the logic and effect of the facts and

circumstances before the court. Id.

                                 II. Violation of Probation

       Higgins concedes “[t]here is no question that he was arrested for invasion of

privacy.” Brief of the Appellant at 10. However, he argues that the trial court abused its

discretion in revoking his probation for this violation and/or ordering him to serve all of

his suspended time at the DOC.

       We acknowledge that the standard of proof for a finding of guilty is beyond a

reasonable doubt and the standard of proof for a probation violation is preponderance of

the evidence, and we have often stated that because of the lesser standard, a finding of
                                             3
guilt is not a necessary precursor for a finding of a violation based on a new criminal

offense. See Dokes v. State, 971 N.E.2d 178, 180-81 (Ind. Ct. App. 2012) (“Because of

the difference between the burden of proof required to convict someone of a crime and

the burden of proof required to revoke probation, the court could revoke probation after

finding [defendant] not guilty based on the same evidence.”). In Hoffa v. State, 267 Ind.

133, 368 N.E.2d 250 (1977), our supreme court noted that

       “[g]ood behavior” or lawful conduct is a “term” or condition of a
       defendant’s probation and violation of this term may result in the
       revocation of probation. It is not necessary that a criminal conviction
       precede revocation of probation for unlawful conduct; it is only necessary
       that the trial judge, after a hearing, finds such unlawful conduct to have
       occurred.

Id. at 135, 368 N.E.2d at 252. The defendant in Hoffa was alleged to have violated the

condition of his probation prohibiting arrest. Although “[a]n arrest standing alone does

not support the revocation of a defendant’s probation[,]” the trial court heard evidence at

the probation revocation hearing from which it found that the arrest was reasonable and

that there was probable cause to believe that the defendant had committed a crime,

therefore supporting the revocation of the defendant’s probation. Id. at 136, 368 N.E.2d

at 252; see also Cooper v. State, 917 N.E.2d 667, 674 (Ind. 2009) (“The law is well

settled that an arrest standing alone will not support the revocation of probation.

However, . . . if the trial court after a hearing finds that the arrest was reasonable and

there is probable cause to believe the defendant violated a criminal law, revocation will

be sustained.”) (citations omitted).




                                            4
         As in Hoffa, the sole allegation of the petition to revoke Higgins’s probation was

that he had been arrested for a new crime while on probation.1 He was tried by a jury for

that crime and found not guilty immediately prior to the trial court revoking his probation

based upon the same evidence presented to the jury. However, unlike the trial court in

Hoffa, the trial court here did not find that the evidence presented was sufficient to prove

by a preponderance of the evidence that Higgins had in fact committed the crime of

invasion of privacy or even that there was probable cause to support the arrest; the trial

court found only that a preponderance of the evidence proved that he had “in fact [been]

arrested” for that crime. Tr. at 94. We therefore agree with Higgins that his arrest was

insufficient to support revocation of his probation and commitment to the DOC for the

entirety of his previously-suspended sentence and the trial court abused its discretion in

doing so.

         While ordinarily Indiana Appellate Rule 65(E) would require certification of this

opinion prior to action by the trial court, in equity and law, courts have the inherent

authority to require immediate compliance with their orders and decrees in order to give

effective relief. See Noble Cnty. v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex

rel. Brubaker v. Pritchard, 236 Ind. 222, 226-27, 138 N.E.2d 233, 235 (1956). Because

Higgins has already served a substantial portion of his previously-suspended sentence

which we have found to be in error, we direct the trial court to order Higgins’s release

forthwith.




         1
           This is based upon the discussion between the parties and the trial court at the hearing; the actual petition
to revoke probation is not a part of the record on appeal.
                                                           5
                                        Conclusion

       The trial court abused its discretion in revoking Higgins’s probation and ordering

him to serve the entirety of his previously-suspended sentence at the DOC based solely

upon the fact of an arrest. The trial court’s order is reversed and this case is remanded to

the trial court to order Higgins’s immediate release.

       Reversed and remanded.

BAKER, J., and BRADFORD, J., concur.




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