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:

JILL M. ACKLIN                                      GREGORY F. ZOELLER
Acklin Law Office, LLC                              Attorney General of Indiana
Westfield, Indiana
                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                              Apr 12 2013, 9:24 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

AMANDA SPICER,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 84A01-1210-CR-445
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable Michael Rader, Judge
                             Cause No. 84D05-1004-FD-1539



                                          April 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Amanda Spicer (“Spicer”) appeals the trial court’s order revoking her probation,

contending that the trial court abused its discretion. We vacate the order of revocation

and remand with instructions.

                       FACTS AND PROCEDURAL HISTORY

       In March 2011, Spicer pleaded guilty to illegal possession of anhydrous ammonia

or ammonia solution as a Class D felony and possession of a controlled substance as a

Class D felony and was sentenced to concurrent three-year terms, of which 180 days

were ordered to be served on Home Detention and two-and-a-half-years on informal

probation. Appellant’s App. at 29, 32. Pursuant to the terms of her probation, Spicer was

required to pay for and complete the Vigo County Alcohol and Drug Program. Id. at 32.

On July 17, 2012, Spicer was alleged to have violated her probation by: (1) refusing to

enroll in or failing to report to “Cummins Mental Health Center (A&D)”; (2) failing or

testing positive on May 31, 2012 for opiates (hydrocodone) and Methamphetamine at

A&D; and (3) failing to pay certain fees. Id. at 34. Following a probation revocation

hearing on August 30, 2012, the trial court revoked Spicer’s probation. Spicer now

appeals.

                            DISCUSSION AND DECISION

       The decision to revoke probation is within the sound discretion of the trial court,

and its decision is reviewed on appeal for abuse of that discretion. Ripps v. State, 968

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

is clearly against the logic and effect of the facts and circumstances before the court. Id.

(citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). In order to revoke probation,

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the trial court must make a factual determination that a violation of a condition of

probation actually occurred, and if a violation is found, then the trial court must

determine the appropriate sanctions for the violation. Woods v. State, 892 N.E.2d 637,

640 (Ind. 2008).

       The due process requirements of a probation revocation proceeding are well-

established: Probation is a favor granted by the State, not a right to which a criminal

defendant is entitled. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008) (citing

Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997)), trans. denied. However,

once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id.

Probation revocation implicates a defendant’s liberty interest, which entitles her to some

procedural due process. Id. (citing Parker, 676 N.E.2d at 1085 (citing Morrissey v.

Brewer, 408 U.S. 471, 482 (1972))). Because probation revocation does not deprive a

defendant of her absolute liberty, but only her conditional liberty, she is not entitled to the

full due process rights afforded a defendant in a criminal proceeding. Id.

       Due process requires a written statement by the fact finder regarding the evidence

relied upon and the reasons for revoking probation. Id. at 101. This is not an arduous

requirement and is imposed on trial courts to promote accurate fact finding and to ensure

the accurate review of revocation decisions. Hubbard v. State, 683 N.E.2d 618, 620-21

(Ind. Ct. App. 1997). The rationale underlying the writing requirement in probation

revocation proceedings has its genesis in Morrissey where the United States Supreme

Court concluded that while an informal hearing structure is permissible for parole

revocation proceedings, it still must comport with basic notions of due process, including

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“a written statement by the fact finders as to the evidence relied on and reasons for

revoking parole.” 408 U.S. at 489 (emphasis added). In Gagnon v. Scarpelli, the United

States Supreme Court applied the Morrissey holding to probation revocation proceedings,

holding that for purposes of due process analysis, the two proceedings are the same. 411

U.S. 778, 782 (1973). Our Supreme Court in Medicus v. State, 664 N.E.2d 1163 (Ind.

1996), applied the Gagnon rule to probation revocation proceedings. Medicus, 664

N.E.2d. at 1164-65.

       In the present case, the Petition to Revoke Probation alleged that Spicer violated

her probation by: (1) refusing to enroll in or failing to report to “Cummins Mental Health

Center (A&D)”; (2) failing or testing positive on May 31, 2012 for opiates (hydrocodone)

and methamphetamine; and (3) failing to pay certain fees. Id. at 34. Prior to revoking

Spicer’s probation, the trial court held four hearings—July 20, 2012, August 3, 2012,

August 10, 2012, and August 30, 2012. During the July 20, 2012 hearing, the trial court

ended the hearing when it learned that Spicer had been prescribed opiates—one of the

drugs for which she was alleged to have tested positive. Jul. 20, 2012 Hr’g Tr. at 3. At

the close of the hearing, the trial court ordered Spicer to “do a drug screen,” and

requested a report, stating, “I want to know what it’s positive for.” Id. at 3, 4. A second

hearing was held on August 3, 2012. At the start of the hearing, the trial court learned

that Spicer’s drug screen had been rescheduled. Aug. 3, 2012 Hr’g Tr. at 1. The trial

court adjourned the hearing and reconvened on August 10, 2012, at which time it

scheduled a hearing for August 30, 2012.



                                            4
       Following the August 30 hearing, the trial court stated:

       There are not very many options. I think that’s precisely the problem. This
       is a, you know, a case where a defendant plead [sic] guilty to Possessing
       Anhydrous Ammonia, Precursors and Manufacturer [sic] of
       Methamphetamine. Possession of Controlled Substance. Test positive for
       methamphetamine. Well, show the Court finds the defendant has violated
       the terms of her probation. I revoke you, sentence you to three (3) years at
       the Indiana Department of Correction. . . .

Aug. 30, 2012 Hr’g Tr. at 20. The trial court’s order, in pertinent part, provided:

       Cause comes on for hearing on probation violation. Witnesses sworn;
       evidence heard. The Court finds the Defendant violated her term of
       probation. The Court revokes the Defendant’s sentence and sentenced [sic]
       her to the Indiana Department of Correction for three (3) years with credit
       for 2 actual days served in the Vigo County Jail on April 28, 2011 and
       April 29, 2011 and for 88 actual days on Home Detention from June 29,
       2011 through September 24, 2011.

Appellant’s App. at 37. The abstract of judgment noted that probation was being revoked

because Spicer had “failed drug screens” and had “fail[ed] to comply with the Vigo

County Alcohol and Drug Program.” Id. at 38. The trial court’s findings are not findings

of primary fact, but simply a legal conclusion. Put differently, the trial court’s findings

do not set forth the evidence upon which the trial court relied to revoke Spicer’s

probation and, therefore, these findings do not meet the due process requirements of

Morrissey. As such, they are inadequate to ensure our accurate review of this revocation

decision. The Probation Department alleged that Spicer violated her probation in three

ways. From the trial court’s findings, we are unable to determine what violations Spicer

committed or whether the evidence was sufficient to establish the violations.

Accordingly, we vacate the trial court’s order and abstract of judgment and remand with

instructions that the trial court enter a written statement comporting with due process and

                                             5
setting forth which terms of probation Spicer violated and the evidence and reasons for

revoking Spicer’s probation.

      Vacated and remanded with instructions.

VAIDIK, J., and PYLE, J., concur.




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