                                                                     Sep 16 2013, 5:36 am
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:

CHRISTOPHER A. CAGE                                GREGORY F. ZOELLER
Anderson, Indiana                                  Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

THOMAS RAYFORD, JR.,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 48A02-1212-CR-1029
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MADISON SUPERIOR COURT
                           The Honorable Thomas Newman, Jr., Judge
                     Cause Nos. 48D03-0609-FA-415 and 48D03-1008-FB-348


                                       September 16, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                               STATEMENT OF THE CASE

       Thomas Rayford, Jr. (“Rayford”) appeals the trial court’s revocation of his home

detention and probation under cause number 48D03-0609-FA-415 (“FA-415”) and his

sentence under cause number 48D03-1008-FB-348 (“FB-348”).

       We affirm.

                                          ISSUES

       1.       Whether the trial court violated Rayford’s due process rights when it
                revoked his home detention and probation.

       2.       Whether sufficient evidence supports the trial court’s decision to
                revoke Rayford’s home detention and probation.

       3.       Whether Rayford’s sentence is appropriate under Indiana Appellate
                Rule 7(B).

                                           FACTS

       On September 18, 2006, the State charged Rayford with Class A felony dealing in

cocaine under FA-415. Rayford pled guilty on February 12, 2007, to the lesser included

offense of Class B felony dealing in cocaine, and the trial court sentenced him to fifteen

(15) years in the Indiana Department of Correction (“IDOC”).

       The trial court ordered an evaluation of Rayford’s suitability for the Madison

County Reentry Program, which he subsequently completed on June 10, 2010. Upon his

return to the supervision of the trial court, Rayford was granted a 25% reduction of his

original sentence, and, as a result, was placed on probation for 2,656 days, the balance of

his sentence.



                                              2
         On August 2, 2010, the State charged Rayford with Class B felony unlawful

possession of a firearm by a serious violent felon under FB-348. Based on this new

criminal charge, the State filed a notice of violation of probation on August 6, 2010,

seeking to revoke Rayford’s probation in FA-415. Following an evidentiary hearing on

September 8, 2010, the trial court revoked Rayford’s probation in FA-415 and ordered

the remainder of his sentence to be served in the IDOC.1

         On April 5, 2012, the trial court modified Rayford’s sentence and changed his

placement from the IDOC to the Madison County Work Release Center following his

guilty plea in FB-348. The trial court also ordered that Rayford’s sentence in FB-348 be

stayed and entered a sentence of six years executed on home detention, provided he could

successfully complete one year of community corrections in FA-415. The order further

provided that if Rayford’s sentence in FA-415 was revoked for any reason, the trial court

would hold a new sentencing hearing in FB-348 and the sentence in that cause would be

open to the trial court’s discretion. The exact language of Rayford’s plea agreement is as

follows:

         Sentencing shall be stayed for period not to exceed one (1) year. If the
         Defendant successfully completes one (1) year of community
         corrections under 48D03-0609-FA-415, the Defendant’s sentence
         herein shall be six (6) years executed on community corrections. If the
         Defendant’s community corrections privileges are revoked for any
         reason under 0609-FA-415, sentencing shall be set within thirty (30)
         days of the revocation and the sentence will be open to the Court.

(App. 53) (emphasis in original).


1
    A transcript of this proceeding was not submitted with Rayford’s appeal.

                                                  3
       On September 26, 2012, Rayford was arrested and charged with Class C felony

dealing in marijuana and Class D felony possession of marijuana. As a result of this

arrest, the State filed a petition to revoke Rayford’s home detention and previously

withheld sentence under FB-348. In its petition, the State alleged that Rayford had been

arrested on the aforementioned charges, had violated probation and in-home detention

rules by failing to “obey all state, federal, and municipal laws and behave well in

society,” and had violated his stayed sentence in FB-348 by failing to successfully

complete one year of community corrections in FA-415. (App. 50).

       On November 26, 2012, the trial court held an evidentiary hearing at which

Detective Jake Brooks (“Det. Brooks”) of the Anderson Police Department testified as to

the details of Rayford’s most recent arrest. According to Det. Brooks, the department’s

drug task force orchestrated a buy-bust involving Rayford’s nephew, Donovan Sawyer

(“Sawyer), who subsequently told Det. Brooks that he had purchased marijuana from

Rayford and his girlfriend Nicole Sutherland Trout (“Trout”). Sawyer also told Detective

Brooks that Rayford and Trout had an additional half-pound of marijuana stored in their

car.

       While the police were still questioning Sawyer and Rayford’s father, a vehicle

driven by Rayford with Trout as a passenger pulled up to the house and immediately

drove away. The police then performed a traffic stop of Rayford’s car and detected a

strong odor of marijuana from inside the vehicle. Trout admitted to police that the

vehicle contained marijuana, but she claimed it belonged to Rayford. A half-pound of


                                           4
marijuana was found in Trout’s purse, and Rayford and Trout were found to have $424

and $800, respectively, on their persons. The police also found a marijuana grinder

within the vehicle.

       After arresting Rayford and Trout, the police obtained and executed a search

warrant for Trout’s apartment. After being advised of her Miranda rights, Trout spoke to

police about Rayford’s involvement with the marijuana. She implicated herself as a

seller and Rayford as her supplier. She told police that the marijuana in her apartment

belonged to Rayford, and she correctly described where police could find the drug. At

the revocation hearing, Trout testified as to Rayford’s knowledge that she was selling

marijuana, and she stated that he gave her the telephone number of someone she could

call to obtain the drug.

       Following the conclusion of the evidence, the trial court found by a preponderance

of the evidence that Rayford had dealt marijuana. The judge noted, among other things,

that Rayford did not behave well in society, had facilitated others in dealing marijuana,

and had visited common nuisance areas where others were using illegal substances.

Having found that Rayford had violated the conditions of his home detention and

probation in FA-415, the trial court revoked his probation in FA-415 and ordered him to

serve the remainder of his suspended sentence. The trial court also sentenced him to

twenty (20) years in FB-348, to be served consecutively to his sentence in FA-415.

Rayford now appeals the revocation of his probation in FA-415 and the appropriateness

of his sentence in FB-348.


                                            5
                                        DECISION

1.     Due Process

       Rayford first challenges whether the State afforded him due process in revoking

his probation in FA-415. Specifically, Rayford argues that statements made by the trial

court judge regarding facilitating others in dealing and visiting a common nuisance

indicate that these potential violations formed a part of the judge’s revocation decision.

The State maintains that the judge’s statements were not themselves allegations, and that

the judge was merely “noting details in the evidence presented that supported the

violations previously outlined in the petition to revoke home detention.” (State’s Br. 13).

The State further argues that even if the judge’s remarks did constitute oral allegations,

they would be harmless error in light of the other violations for which Rayford did

receive notice. We agree.

       Under the Fourteenth Amendment, a defendant in a probation revocation hearing

is entitled to: (a) written notice of the claimed violations of probation; (b) disclosure to

the probationer of evidence against him; (c) opportunity to be heard in person and to

present witnesses and documentary evidence; (d) the right to confront and cross-examine

adverse witnesses unless the hearing officer specifically finds good cause for not

allowing confrontation; (e) a neutral and detached hearing body; and (f) a written

statement by the fact finders as to the evidence relied on and reasons for revoking parole.

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). See also Isaac v. State, 605 N.E.2d 144,

148 (Ind. 1992); Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct. App. 2002).


                                             6
       Due process provides that a defendant has a right to receive sufficiently detailed

notice of his claimed violations in order to prepare an adequate defense. Bovie v. State,

760 N.E.2d 1195, 1199 (Ind. Ct. App. 2002) (citing Hubbard v. State, 683 N.E.2d 618,

622 (Ind. Ct. App. 1997)). It is error for trial courts to revoke probation based upon

violations for which a defendant received no notice. J.H. v. State, 857 N.E.2d 429, 433

(Ind. Ct. App. 2006). However, because proof of a single violation of the conditions of

probation is sufficient to support the decision to revoke probation, a revocation based

partly on a violation for which a defendant did not receive notice results in harmless error

when that person is also found in violation regarding another offense for which he did

receive notice. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g denied,

trans. denied.

       Here, Rayford was provided with sufficient notice of his alleged violations of

probation.   On September 27, 2012, the State filed a petition for termination of home

detention in FA-415 and violation of executed / suspended sentence in FB-348, in which

the State described how Rayford had been arrested the day before on charges of Class C

felony dealing marijuana and Class D felony possession of marijuana. The petition also

outlined Rayford’s violations of the conditions of his home detention program, including

(a) failing to obey all state, federal, and municipal laws, as well as failing to behave in

society, and (b) that his most recent arrest violated his stayed sentence in FB-348 as

Rayford failed to successfully complete one year of community corrections under FA-

415.


                                             7
         Although Rayford argues that the trial court judge’s aforementioned statements at

the hearing constituted oral allegations of violations for which he was not given notice,

his argument is unavailing in light of the other violations for which he was put on notice

and against which he had the opportunity to prepare a defense. See Bussberg, 827 N.E.2d

at 44 (holding that it was “harmless error” to base revocation partly on a violation for

which the defendant did not receive notice when the defendant was also found in

violation regarding another offense for which he did receive notice). The trial court

found by a preponderance of the evidence that Rayford committed the probation violation

of dealing in marijuana, a violation for which Rayford did receive notice. This violation

alone was sufficient to revoke Rayford’s probation, id., and we need not reach the

question about whether the trial court judge’s remarks constituted oral allegations of any

additional violations. We therefore find that Rayford’s due process challenge is without

merit.

2.       Sufficiency of Evidence for Probation Revocation

         Rayford also challenges the sufficiency of the evidence supporting the trial court’s

decision to revoke his probation. Specifically, Rayford argues that the trial court erred in

admitting hearsay statements by Sawyer that he claims were substantially unreliable. He

also argues the trial court erred in crediting Detective Brooks’ hearsay statements as to

what Trout told police over Trout’s own testimony at the revocation hearing. The State

argues in response that the trial court acted within its discretion in admitting Detective




                                              8
Brooks’ testimony, and that we should decline Rayford’s apparent invitation to reweigh

evidence. We agree.

       “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 determines the conditions of probation and may revoke probation if the

conditions are violated. Id.; see also Ind. Code. § 35-38-2-3. Indeed, violation of a

single condition of probation is sufficient to revoke probation. Richardson v. State, 890

N.E.2d 766, 768 (Ind. Ct. App. 2008), reh’g denied. Upon determining that a probationer

has violated a condition of probation, the trial court may “[o]rder execution of all or part

of the sentence that was suspended at the time of initial sentencing.” I.C. § 35-38-2-

3(h)(3). “Once a trial court has exercised its grace by ordering probation rather than

incarceration, the judge should have considerable leeway in deciding how to proceed.”

Prewitt, 878 N.E.2d at 188.      “If this discretion were not given to trial courts and

sentences were scrutinized too severely on appeal, trial judges might be less inclined to

order probation to future defendants.” Id. As a result, we review a trial court’s decision

to revoke probation for an abuse of discretion. Id. (citing Sanders v. State, 825 N.E.2d

952, 956 (Ind. Ct. App 2005), trans denied).

       An abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances. Id. Under this standard, an appellate court ‘will

consider all the evidence most favorable to supporting the judgment of the trial court

without reweighing the evidence of judging the credibility of witnesses.” Braxton v.


                                               9
State, 651 N.E.2d 268, 270 (Ind. 1995). “Because probation revocation hearings ‘are to

be flexible, strict rules of evidence do not apply.’” Bass v. State, 974 N.E.2d 482, 486

(Ind. Ct. App. 2012) (quoting Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)). Hearsay

evidence is admissible in probation revocation proceedings so long as it is substantially

trustworthy. Bass, 974 N.E.2d at 486 (citing Reyes v. State, 868 N.E.2d 438, 440 (Ind.

2007)). Ideally, the trial court should explain on the record why the hearsay evidence is

reliable. Id.

       Here, the trial court admitted Detective Brook’s hearsay testimony as to Sawyer’s

statements over Rayford’s objections, deeming Sawyer’s statements reliable because it

was against his interest to admit to selling drugs with Rayford as his supplier. Further,

Sawyer’s statements were corroborated by the subsequent search of Rayford’s vehicle,

during which police found the half-pound of marijuana Sawyer said would be present.

Although Rayford cites Newby v. State, 701 N.E.2d 593, 599 for the proposition that

defendants found with drugs in their possession do not make statements against their

interest when they implicate others’ involvement in the crime, as the State correctly

points out, the present case is distinguishable from Newby in that it is a probation

revocation, and “the strict rules of evidence and hearsay do not apply.” Cox, 706 N.E.2d

at 550; Ind. Evidence Rule 101(c)(2). The trial court need only be satisfied that the

statements were reliable, and we cannot conclude here that the trial court abused its

discretion in admitting Detective Brooks’ hearsay testimony as to Sawyer’s statements.

Regarding Rayford’s argument that Trout’s statements at the hearing should be credited


                                           10
over Detective Brooks’ hearsay testimony as to what Trout told him, we recognize the

challenge as merely an invitation to reweigh evidence, which we will not do.          See

Braxton, 651 N.E.2d at 270. Furthermore, because at the revocation hearing, Rayford

only objected to Detective Brooks’ testimony “regarding what Donovan Sawyer may

have said” (Tr. 34), not what Trout said, he has waived that argument on appeal.

      For the foregoing reasons, we affirm the trial court’s revocation of Rayford’s

probation.

3.    Appropriateness of the Twenty-Year Sentence

      Finally, Rayford challenges the appropriateness of his twenty-year sentence

imposed in FB-348. A sentence authorized by statute will not be revised unless the

sentence is inappropriate in light of the nature of the offense and the character of the

offender. Ind. App. Rule 7(B). The defendant bears the burden of persuading the

appellate court that his sentence is inappropriate. Calvert v. State, 930 N.E.2d 633, 643

(Ind. Ct. App. 2010) (internal citation omitted). The principal role of a Rule 7(B) review

“should be to attempt to leaven outliers, and identify some guiding principles for trial

courts and those charged with improvement of the sentencing statutes, but not to achieve

a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). Whether a sentence is inappropriate ultimately turns on ‘“the culpability of the

defendant, the severity of the crime, that damage done to others, and a myriad of other

factors that come to light in a given case.’”     Calvert, 930 N.E.2d at 643 (quoting

Cardwell, 895 N.E.2d at 1224).


                                           11
      When determining whether a sentence is inappropriate, we acknowledge that the

advisory sentence “is the starting point the Legislature has selected as an appropriate

sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081. The

sentencing range for a Class B felony is between six (6) and twenty (20) years, with the

advisory sentence being ten (10) years. I.C. § 35-50-2-5. For Rayford’s Class B felony

unlawful possession of a firearm, the trial court imposed a twenty-year sentence.

      As the State correctly points out, while Rayford argues that his sentence is

inappropriate in light of his character, he makes no argument as to how the nature of his

offense justifies revision of his sentence. (See Rayford’s Br. 17-19). By neglecting to do

so, Rayford has failed to meet his burden under Appellate Rule 7(B) and waives this issue

for appellate review. Appellate Rule 46(A)(8)(a) (waiver based on failure to present a

cogent argument). See also Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App 2008)

(explaining that “revision of a sentence under Indiana Appellate Rule 7(B) requires the

appellant to demonstrate that his sentence is inappropriate in light of both the nature of

his offense and his character” and holding that the appellant had waived appellate review

of Rule 7(B) argument by failing to provide a cogent argument as required under

Appellate Rule 46(a)(8)(a)) (emphasis in original). We will nevertheless address the

merits of the arguments Rayford did include.

      With regard to his character, Rayford admits that he has a “lengthy and serious

history.” (Rayford’s Br. 17). He argues, however, that because he cannot be considered

“the worst of the worst offenders,” and because he was within five days of completing his


                                           12
community corrections placement, the minimum, rather than the maximum sentence,

would be the appropriate result. We disagree. Rayford’s extensive criminal history

includes two prior felony convictions for Class B felony dealing in in cocaine, Class D

felony intimidation, and misdemeanor possession of a handgun.          We do not find it

compelling that Rayford was within five days of completing a community corrections

placement in FA-415 which would have reduced his sentence in FB-345 to the minimum.

His inability to successfully complete a year of probation with such high-stakes

consequences only indicates a persistent disdain for legal authority, despite being

afforded opportunities for rehabilitation. We also find unavailing his argument that he is

not “the worst of the worst offenders.” (Rayford’s Br. 17). See Jenkins v. State, 909

N.E.2d 1080, 1086 (Ind. Ct. App. 2009) (finding a maximum sentence appropriate even if

a defendant is “far from the ‘worst of the worst’” where a “moderate record of criminal

convictions and other contacts with the criminal justice system have not convinced [him]

to reform himself.”). Accordingly, we find that Rayford has not persuaded us that his

sentence is inappropriate in light of his character.

       As stated above, Rayford’s brief is silent on the issue of whether the nature of his

offense justifies revision of his sentence. Regardless, we find that the nature of his

offense, Class B felony unlawful possession of a firearm by a serious violent felon,

supports his twenty-year sentence. The advisory sentence range for a Class B felony is

between six and twenty years, with an advisory sentence of ten years, and Rayford

concedes that a sentence greater than the advisory is justified. Indeed, nothing about the


                                              13
nature of the offense justifies a reduction in sentence. According to the probable cause

affidavit, Rayford was arrested while on probation in FA-415, during the execution of a

search warrant by police in a club known for criminal gang and drug activity. Rayford

did not comply with police officer’s requests that he keep his left hand visible and instead

told police, “Fuck you.” (Conf. App. 56.) Police subsequently found a revolver in

Rayford’s left front pocket during a pat-down. Accordingly, we find that the twenty-year

sentence is justified in light of the nature of Rayford’s offense.

       Rayford has not persuaded us that his sentence is inappropriate. We therefore

affirm the trial court’s sentence.

       Affirmed.

BARNES, J. and CRONE, J., concur.




                                              14
