      MEMORANDUM DECISION                                                         FILED
      Pursuant to Ind. Appellate Rule 65(D), this                             Apr 19 2018, 9:13 am

      Memorandum Decision shall not be regarded as                                CLERK
      precedent or cited before any court except for the                      Indiana Supreme Court
                                                                                 Court of Appeals
      purpose of establishing the defense of res judicata,                         and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark A. Thoma                                             Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                       Attorney General of Indiana
                                                                Laura R. Anderson
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Terence C. Kendrick, Jr.,                                 April 19, 2018

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1710-CR-2465
              v.                                                Appeal from the Allen Superior
                                                                Court.
                                                                The Honorable Samuel R. Keirns,
      State of Indiana,                                         Magistrate.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                02D05-1605-F6-610




      Friedlander, Senior Judge

[1]   Terence Kendrick, Jr., appeals the trial court’s decision revoking his probation

      and ordering him to serve his previously-suspended sentence. He raises two

      issues for review, which we expand and restate as:


              1. Whether the evidence was insufficient to support revocation;

      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018           Page 1 of 9
              2. Whether the trial court abused its discretion in ordering him to
              serve his previously-suspended sentence; and
              3. Whether he was denied due process at his revocation hearing.


      We affirm.


[2]   On November 10, 2016, Kendrick pleaded guilty to Level 6 felony resisting law

      enforcement and Class C misdemeanor refusal to identify self. The trial court

      imposed a two-year suspended sentence and placed Kendrick on probation for

      two years.


[3]   On March 17, 2017, the State filed a verified petition for revocation of

      probation, alleging that Kendrick failed to report for supervision as instructed

      and that his last face-to-face contact with probation was on December 15, 2016.

      On June 1, 2017, Kendrick admitted the violations of probation, and the court

      returned him to probation with the additional condition of “zero tolerance.”

      Appellant’s App. Vol. II, p. 38.


[4]   On August 2, 2017, another verified petition for revocation of probation was

      filed, alleging that Kendrick had not maintained good behavior, because “[o]n

      or about the 1st day of August, [sic] 2017, [he] allegedly committed the offense

      of False Informing, a Class A Misdemeanor.” Id. at 39. On August 22, 2017,

      Kendrick requested to waive his right to an attorney and proceed pro se, which

      the court granted. On that same day, a contested revocation hearing was set for

      September 28, 2017.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 2 of 9
[5]   At the contested hearing, Officer David Bush, with the Fort Wayne Police

      Department, testified that on August 1, 2017, at around 3:30 a.m., he was

      patrolling a church parking lot where the department had previously received

      reports of vandalism, trespassing, and theft. Officer Bush saw a vehicle parked

      in the lot. He approached the vehicle to see if anyone was inside and to

      investigate a potential trespassing offense. He found Kendrick inside the

      vehicle, and Kendrick told the officer that he was praying. The officer asked

      Kendrick if he had identification that contained his name, and Kendrick replied

      that he did not. Officer Bush then asked Kendrick to provide his name, date of

      birth, and social security number. When the officer checked the information

      Kendrick provided, however, he determined that the information was false.

      The officer learned Kendrick’s identity after providing Kendrick’s license plate

      number to a police dispatcher. The officer also learned that a civil body

      attachment had been issued for Kendrick; that Kendrick’s wallet, containing

      identification, was in the vehicle; and that the vehicle was registered in

      Kendrick’s name, although he initially told the officer the vehicle was registered

      to his girlfriend.


[6]   Kendrick then cross-examined Officer Bush. After Kendrick concluded the

      cross-examination, the trial court informed Kendrick he could “put on any

      evidence that you have.” Id. at 24. Kendrick told the court he had no evidence

      to present, but that he wanted to act as his own witness. Kendrick then testified

      as follows: “By no means am I denying saying a lie. I told a lie.” Id. at 26. He

      further testified that when he encountered the police in the church parking lot,


      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 3 of 9
      he “didn’t think that an official investigation was happening,” and he “wasn’t

      committing any crime back there.” Id.


[7]   Following the contested hearing, the trial court found Kendrick had violated

      the terms of his probation and revoked his probation and ordered him to serve

      his previously suspended two-year sentence in the Department of Correction

      (DOC). Kendrick now appeals.


[8]   “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 (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 (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.


                                                         1.

[9]   Kendrick contends his probation should not have been revoked because the

      State failed to present sufficient evidence to prove he committed false

      informing. We review insufficiency of evidence claims in a probation

      proceeding as we do any other sufficiency of the evidence question. Smith v.

      State, 727 N.E.2d 763 (Ind. Ct. App. 2000). We will not reweigh evidence or

      judge credibility of witnesses. Id. We look only at the evidence favorable to the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 4 of 9
       State and all reasonable inferences therefrom. J.J.C. v. State, 792 N.E.2d 85

       (Ind. Ct. App. 2003). The State’s burden of proof regarding an alleged

       probation violation is proof by a preponderance of the evidence. Id.


[10]   A person is guilty of false informing if he or she gives false information in the

       official investigation of the commission of a crime, knowing the information to

       be false. Ind. Code § 35-44.1-2-3(d)(1) (2016). According to Kendrick, the

       evidence was insufficient to prove the police were involved in an official

       investigation at the time he provided the false information. We disagree.


[11]   A police officer on routine patrol saw Kendrick’s vehicle parked in a deserted

       church parking lot at 3:30 a.m. The officer testified that the police department

       previously had received from the church reports of vandalism, trespassing, and

       theft, and that, upon observing Kendrick’s vehicle, the officer was investigating

       a “potential trespassing offense.” Tr. p. 14. Sufficient evidence was provided to

       show the police officer was involved in an official investigation at the time

       Kendrick provided false information.


                                                          2.

[12]   Kendrick next contends that the trial court abused its discretion when it revoked

       his probation and sentenced him to his previously-suspended two-year sentence.

       According to Kendrick, “the facts and circumstances surrounding [his] alleged

       [probation] violation are not indicative of someone who should not be able to

       benefit from the rehabilitative aspect of probation;” and full revocation of his

       probation was unwarranted due to mitigating circumstances such as “he was at


       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 5 of 9
       a church praying,” he “eventually ha[d] a desire to be honest” with the police,

       and he has five children and is “a contributing member of society.” Appellant’s

       Br. p. 11.


[13]   Probation revocation is a two-step process. First, the trial court must determine

       that a violation of a condition of probation actually occurred. Woods v. State,

       892 N.E.2d 637 (Ind. 2008). Second, the court must determine if the violation

       warrants revocation of probation. Id. The decision to revoke probation is

       within the sole discretion of the trial court. Id. Violation of a single condition

       of probation is sufficient to revoke probation. Beeler v. State, 959 N.E.2d 828

       (Ind. Ct. App. 2011), trans. denied.


[14]   A trial court’s sentencing decisions for probation violations are reviewable using

       the abuse of discretion standard. Prewitt, 878 N.E.2d 184. Trial courts are not

       required to consider mitigating factors when imposing sanctions for probation

       revocation. See Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993)

       (holding trial court did not err by declining to consider mitigating circumstances

       before imposing sanction because Indiana Code section 35-38-2-3 does not

       require a trial court to consider aggravating and mitigating factors when

       revoking probation), holding narrowed by Patterson v. State, 659 N.E.2d 220, 222-

       23 n.2 (Ind. Ct. App. 1995) (trial courts should consider a probationer’s mental

       state when deciding sanction for probation revocation).


[15]   The evidence presented at Kendrick’s contested hearing established by a

       preponderance of the evidence that he violated his probation by committing the


       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 6 of 9
       offense of false informing. The violating offense was similar to the offenses for

       which Kendrick already was on probation, i.e., resisting law enforcement and

       refusal to identify self. Revocation of Kendrick’s previously suspended

       sentence did not go against the logic and effect of the facts and circumstances

       surrounding his violation. As such, the trial court’s order revoking probation

       and sentencing him to the DOC for the suspended two-year sentence was not

       an abuse of discretion.


                                                          3.

[16]   Kendrick also contends his right to due process under the Fourteenth

       Amendment was violated because he was not “afforded the resources and time

       to obtain and present relevant and exculpatory evidence.” Appellant’s Br. p.

       17. He alleges that he possessed (1) evidence that no 911 emergency calls were

       placed from the church regarding vandalism, theft, or trespassing, and (2) a

       letter from the pastor of the church granting him permission to be on church

       property after hours. He argues, essentially, he was not afforded the time to

       gather the evidence so that it could be offered at the probation revocation

       hearing.


[17]   The United States Supreme Court has held that the Due Process Clause applies

       to probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct.

       1756, 36 L. Ed. 2d 656 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct.

       2593, 33 L. Ed. 2d 484 (1972)). While a defendant is not entitled to full due

       process rights for a probation revocation, he is entitled to certain due process

       rights, including: a written notice of the claimed violations, disclosure of
       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 7 of 9
       the evidence against him or her, the opportunity to be heard in person and

       present witnesses and documentary evidence, the right to confront and cross-

       examine witnesses, a neutral and detached hearing body, and a written

       statement by the factfinder regarding the evidence relied upon and reason for

       revocation. Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011).


[18]   Kendrick’s right to due process was not violated. At the contested hearing,

       during his cross-examination of Officer Bush, Kendrick told the trial court that

       he “had 911 calls pulled and there were no calls made within the entire year of

       any complaints of trespassing or anything the whole year.” Tr. p. 23. The trial

       court told Kendrick that he was free to enter those records into evidence and to

       use those records to cross examine the witness; however, Kendrick made no

       attempts to enter any records into evidence. Id. At the conclusion of the

       presentation of evidence, in his argument to the court, Kendrick stated that he

       wished he had evidence to prove he was not trespassing, and that he had a letter

       from the pastor of his church allowing him to be in the area; however, he also

       stated that he was going to wait to present that evidence to the misdemeanor

       court where he was charged with the false informing offense. Kendrick added

       that he “wasn’t sure coming into the situation there was going to be a whole

       [probation revocation] hearing;” however, he did not request a continuance

       from the trial court. Id. at 36. Under these circumstances, we cannot conclude

       that Kendrick’s constitutional right to due process was violated.


[19]   The evidence was sufficient to revoke Kendrick’s probation; the trial court did

       not abuse its discretion when it revoked his probation and ordered him to serve

       Court of Appeals of Indiana | Memorandum Decision 02A03-1710-CR-2465 | April 19, 2018   Page 8 of 9
       his previously-suspended sentence; and his right to due process was not

       violated.


[20]   Judgment affirmed.


       Kirsch, J., and Brown, J., concur.




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