Justin Walker v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any
court except for the purpose of establishing                                      Oct 23 2020, 8:52 am

the defense of res judicata, collateral                                               CLERK
                                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                                    Court of Appeals
                                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Walker,                                           October 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-803
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff.                                      Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1704-F5-38



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020                 Page 1 of 7
                                                 Case Summary
[1]   Justin Walker appeals the sentence imposed following the revocation of his

      probation. We affirm.


                                                          Issue
[2]   The sole issue is whether the trial court abused its discretion in imposing

      Walker’s previously-suspended one-year sentence.


                                                         Facts
[3]   On April 10, 2017, the State charged Walker with Count I, domestic battery, a

      Level 5 felony, and Count II, intimidation, a Level 6 felony. 1 Under the terms

      of a negotiated agreement wherein Count II was dismissed, Walker pleaded

      guilty to Count I on December 20, 2017.


[4]   On January 19, 2018, the trial court accepted the plea agreement and entered its

      sentencing order. 2 Walker agreed to the following sentence as part of the plea




      1
        The charges stemmed from an incident in which Walker and the mother of at least one of his children
      engaged in a dispute. According to the police report, the dispute escalated, and Walker struck the mother in
      the face in front of several witnesses.
      2
        The terms of the resulting sentence were apparently stated incorrectly in the trial court’s January 19, 2018
      written order. The order reads, “The Defendant shall be imprisoned for three (3) years in the appropriate
      penal facility with (1) year being suspended. The balance of the executed sentence shall be served by the
      Defendant being placed on home detention as a direct placement to be supervised by the Jackson/Jennings
      Community Corrections Department . . . .” Appellant’s App. Vol. II p. 76. Though that sentence does not
      appear to include any period of probation, the trial court at the probation revocation hearing in the instant
      case asserted: “So, what I’m going to do is I’m going to order the one (l) year—I will note for the record there
      is a mistake in the Court’s Sentencing Order. It’s hard for me to admit that, but—when the Court sentenced
      the Defendant, in the original Sentencing Order, I put three (3) years and one (l) year suspended. I forgot to
      [include] the one (l) year probation but it’s clearly in the Order that he was going to be on probation, that was
      a typographical error by the Court.” Tr. Vol. II p. 13.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020                      Page 2 of 7
      agreement: three years of incarceration with one year suspended; 377.33 days of

      credit for time served and good behavior, with the remainder to be served on

      home detention; and one year of formal probation. Walker successfully

      completed home detention on October 9, 2018, and began probation.


[5]   On June 13, 2019, however, the State filed a petition to revoke probation which

      it later amended, alleging:


               1) The defendant tested positive for amphetamine and
                  methamphetamine on a drug screen administered by
                  probation on May 13, 2019 and May 31, 2019, a direct
                  violation of Condition #7 of his Order of Probation.


               2) The defendant tested positive for amphetamine and
                  methamphetamine on a drug screen administered by
                  probation on September 9, 2019, September 10, 2019, and
                  September 16, 2019, a direct violation of Condition #7 in his
                  Order of Probation.


      Appellant’s App. Vol. II p. 100.


[6]   Walker failed to appear for the probation revocation hearing, and on September

      26, 2019, the trial court issued a warrant for his arrest. On January 23, 2019,

      the State again amended its petition to revoke probation, alleging:


              1) The defendant committed another criminal offense that being:
                 Possession of Methamphetamine on or about 12/26/2019.
                 Charges have been filed in Jackson Circuit Court under cause
                 #36C01-1912-F6-508, a direct violation of Condition #2 in
                 his Order of Probation.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020   Page 3 of 7
      Id. at 113.


[7]   After reaching a plea agreement with the State for the December 2019

      possession charge, Walker testified at the probation revocation hearing on

      March 2, 2020. Walker admitted each of the State’s allegations, and the trial

      court found that Walker violated the terms of his probation. The trial court

      then heard evidence regarding sanctions. Walker requested a home detention

      placement, and explained that his relapse into drug use was brought on by news

      that his two daughters—who were taken to live in Texas by their mother—were

      being sexually assaulted. 3 Walker’s probation officer testified that, shortly after

      Walker’s relapse, Walker was admitted to a rehabilitation program. Tr. Vol. II

      p. 11. Walker, however, left the program and, shortly thereafter, “went on the

      run, and [the Probation Department] did not see him again until he was picked

      up in December.” Id. at 12. Both the probation officer and the State

      recommended that Walker be placed on home detention.


[8]   The trial court, however, declined those recommendations. Citing Walker’s

      drug use and abscondment from the probation supervision of the trial court for

      several months, the trial court ordered Walker’s previously-suspended one-year

      sentence to be executed at the Department of Correction (“DOC”). Walker

      now appeals.




      3
        Walker’s counsel failed to effectively elicit this testimony at the hearing, though it is cited repeatedly in
      Walker’s appellate brief as the trigger for Walker’s relapse. Walker did, however, testify that he sent a letter
      to the judge, and that letter does include the claim regarding his daughters. Appellant’s App. Vol. II p. 111.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020                       Page 4 of 7
                                                   Analysis
[9]    Walker argues that the trial court abused its discretion when it ordered Walker’s

       previously-suspended sentence to be served at the DOC. “‘Probation is a

       matter of grace left to trial court discretion, not a right to which a criminal

       defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)

       (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “It is within the

       discretion of the trial court to determine probation conditions and to revoke

       probation if the conditions are violated.” Id. “In appeals from trial court

       probation violation determinations and sanctions, we review for abuse of

       discretion.” Id. “An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances,” id., “or when the

       trial court misinterprets the law.” Id. (citing State v. Cozart, 897 N.E.2d 478, 483

       (Ind. 2008)). “We will consider all the evidence most favorable to supporting

       the judgment of the trial court without reweighing that evidence or judging the

       credibility of the witnesses.” Holmes v. State, 923 N.E.2d 479, 483 (Ind. Ct.

       App. 2010) (quoting Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009)).


[10]   “Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition of probation actually

       occurred.” Heaton, 984 N.E.2d at 616 (citing Woods v. State, 892 N.E.2d 637,

       640 (Ind. 2008)). “Second, if a violation is found, then the trial court must

       determine the appropriate sanctions for the violation.” Id. If the trial court

       “finds that the person has violated a condition at any time before termination of

       the period, and the petition to revoke is filed within the probationary period, the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020   Page 5 of 7
       court may: . . . order execution of all or part of the sentence that was suspended

       at the time of initial sentencing.” Ind. Code § 35-38-2-3(h)(3).


[11]   Walker does not contest that he violated the terms of his probation. Indeed, he

       openly admits it. Rather, he challenges the second step of the revocation

       process, correctly pointing out that the trial court’s sentencing discretion is not

       limitless and arguing that an abuse of discretion occurred here. Walker points

       to Johnson v. State, 62 N.E.3d 1224, 1231 (Ind. Ct. App. 2016), as an example of

       cases in which we have reversed probation revocation sentences as being

       “unduly harsh sentences for minor probation violations.” Appellant’s Br. p. 11.

       Johnson is easily distinguishable.


[12]   The violations underpinning the probation revocation in Johnson were minor

       and included leaving house arrest for an authorized trip at a time slightly

       different from that which was authorized, failing to timely pay fees, and sitting

       on a bench outside his apartment complex during house arrest. Johnson, 62

       N.E.3d at 1227-28. There was also substantial evidence that Johnson was

       mentally impaired and did not fully comprehend the import of his decisions.

       Id. Walker’s violations, on the other hand, appear to be admittedly voluntary,

       fully understood, and acknowledged as wrong. We are unmoved by the notion

       that his repeated use of methamphetamine is somehow minor simply because

       the trigger for his relapse, if true, is sympathetic. Moreover, Walker failed to

       appear for his probation revocation hearing and was beyond the grasp of both

       the trial court and the probation department for a period of several months until



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020   Page 6 of 7
       he was apprehended while in possession of methamphetamine. We do not

       consider the probation violations to be minor.


[13]   In reaching its conclusion, the trial court relied on the fact that Walker

       absconded from court supervision for a period of approximately three months,

       as well as the fact that Walker tested positive for amphetamines and

       methamphetamines on six different occasions. Additionally, Walker pleaded

       guilty to a new crime, which was committed during probation. Walker argues

       that he admitted his violations, had been successful in his probation until his

       relapse, was gainfully employed, and had a newborn son. Appellant’s Br. p. 9.

       We find Walker’s arguments unpersuasive, as they are essentially a request to

       reweigh the evidence. Notwithstanding the impact of his violations on his

       familial and professional responsibilities, Walker’s probation violations are

       severe enough to warrant the imposition of his previously-suspended sentence.

       Accordingly, we find that the trial court’s decision is not against the logic and

       effect of the facts and circumstances. We, therefore, cannot say that the trial

       court abused its discretion when it imposed Walker’s previously-suspended one-

       year sentence as a result of Walker’s probation violations.


                                                 Conclusion
[14]   The trial court did not abuse its discretion by ordering Walker to serve his

       previously-suspended sentence due to his probation violations. We affirm.


[15]   Affirmed.


       Kirsch, J., and Pyle, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020   Page 7 of 7
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