Clayton Frazier v. State of Indiana (mem. dec.)

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 13 2020, 8:39 am
court except for the purpose of establishing
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court

ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David W. Stone IV                                         Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana

                                           IN THE

Clayton Frazier,                                          July 13, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
        v.                                                Appeal from the
                                                          Madison Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Mark Dudley, Judge
                                                          Trial Court Cause No.

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020                   Page 1 of 5
                                           Case Summary
[1]   Clayton Frazier appeals the trial court’s order finding that he violated probation

      and requiring him to serve three years in the Department of Correction. We


                            Facts and Procedural History
[2]   In September 2016, J.B., the mother of Frazier’s child, obtained a protective

      order prohibiting Frazier from contacting her for a period of two years. The

      next year, Frazier violated the order and pled guilty to two counts of invasion of

      privacy (one Level 6 felony and one Class A misdemeanor) in Case No. 48C06-

      1703-F5-779 (“F5-779”). While Frazier was awaiting sentencing in F5-779, he

      broke into a store and stole a gun. As a result, the State filed the charges in this

      case: Level 4 felony unlawful possession of a firearm by a serious violent felon,

      Level 5 felony burglary, and Level 6 felony theft of a firearm. Frazier pled

      guilty to those charges in April 2018. On May 23, 2018, the trial court held a

      joint sentencing hearing for this case and F5-779. In this case, the court

      imposed a sentence of nine years, with three years to serve in the Department of

      Correction and six years suspended to probation. In F5-779, the court ordered

      Frazier to serve two years at the Madison County Work Release Center,

      consecutive to the sentence in this case, and to have no contact with J.B.

[3]   Between May 2018 and June 2019, Frazier sent numerous letters to J.B.

      Alleging that the letters violated the no-contact order in F5-779, the State filed

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020   Page 2 of 5
      new felony stalking and invasion-of-privacy charges against Frazier, see Case

      No. 48C06-1909-F5-2227, and also filed a Notice of Violation of Suspended

      Sentence in this case. The new criminal case is still pending (it is currently

      scheduled for trial in January 2021), but the trial court held the final hearing in

      the probation matter in January of this year. The court found that Frazier

      violated probation by committing invasion of privacy and ordered him to serve

      three of the six suspended years in the Department of Correction.

[4]   Frazier now appeals.

                                   Discussion and Decision
[5]   Frazier frames his appeal as raising one issue: “Was the sanction of revocation

      to DOC an abuse of discretion[?]” Appellant’s Br. p. 4. However, the body of

      his brief seems to include two different arguments. First, Frazier contends that

      the letters to J.B. were “benign” and that therefore the trial court should have

      either found no violation of the no-contact order or imposed no probation


Id. at 7.

Alternatively, he argues that the court “failed to recognize it

      had discretion” to choose not to impose a sanction.

Id. Both arguments


      without merit.1

        Frazier also asserts that the trial court interpreted the no-contact order in F5-779 as prohibiting him from
      having contact with his child and that such a prohibition is “improper.” Appellant’s Br. p. 7. He does not cite
      anything in the record to support his claim. And, in any event, the letters at issue were written and sent to
      J.B., not to her and Frazier’s child. See Exs. 2-9.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020                        Page 3 of 5
[6]   In support of his argument that the letters were “benign,” Frazier points out

      that they “contained no threats against J.B. or her children,” that they

      “informed” J.B. that Frazier was filing a paternity action, that Frazier sent J.B.

      “negative tests results for HIV he had received,” that Frazier “requested

      information about their child and pictures of it and [J.B.],” and that “[h]e also

      apologized for his past action.”

Id. The State

disputes Frazier’s characterization

      of the letters, asserting that they “included a number of claims or phrases that

      could be viewed as frightening.” Appellee’s Br. p. 10. But the content of the

      letters is ultimately irrelevant to our review. As the trial court explained, “no

      contact” means just that—no contact. See Tr. pp. 56, 57. Sending the letters was

      an obvious violation of the no-contact order, was criminal, and was sufficient to

      warrant a probation sanction. See Wilburn v. State, 

671 N.E.2d 143

, 147 (Ind. Ct.

      App. 1996) (“The trial court may revoke probation for the mere commission of

      a criminal offense during the probationary period which the State has properly

      established by a preponderance of the evidence.”), trans. denied.

[7]   We also reject Frazier’s alternative argument that the trial court “failed to

      recognize” that it had the option of imposing no sanction for the probation

      violation. See Sullivan v. State, 

56 N.E.3d 1157

, 1160 (Ind. Ct. App. 2016)

      (explaining that the trial court must determine if a probation violation

      “warrants revocation of the probation”). He cites the following statement the

      trial court made in imposing the sanction:

              Um, no contacts are that. They’re no contacts. It’s not no
              contact, but if it’s uh uh innocuous contact, well we won’t care

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020   Page 4 of 5
               about, or if it’s a contact and it’s a medium threat, well maybe
               we’ll worry about it. If it’s a contact with a serious threat, no now
               we’re gonna worry about it. No, it’s a bright line. No contact is
               no contact and that’s how I approach it and he clearly violated
               no contact multiple times. And again, I don’t really care if it’s
               innocuous, medium, or s- serious, it’s a contact and he he knows
               better. He’s- that’s why he was sentenced in [F5-779]. And so,
               the court’s sanction is to revoke three (3) years to the Department
               of Corrections of the six (6).

      Tr. pp. 56-57. Nothing in that statement indicates that the trial court believed it

      was required to impose a sanction. Rather, the court was simply explaining—

      correctly—that the letters violated the no-contact order regardless of their

      content. In short, it is clear to us that the court imposed a sanction because it

      concluded that a sanction was appropriate, not because it thought it had no

      other choice.2

[8]   Affirmed.

      May, J., and Robb, J., concur.

        Frazier does not argue that three years is an excessive sanction for his probation violation. He argues only
      that the trial court should not have imposed any sanction at all. Regardless, given Frazier’s brazen
      commission of a new criminal offense shortly after being sentenced, the trial court did not abuse its discretion
      by ordering him to serve half of his suspended time. See Sanders v. State, 

825 N.E.2d 952

, 956 (Ind. Ct. App.
      2005) (“[W]e review a trial court’s decision to revoke probation and a trial court’s sentencing decision in a
      probation revocation proceeding for an abuse of discretion.”), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-255 | July 13, 2020                        Page 5 of 5

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