Allen L. Ruffin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 13 2015, 9:41 am 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 Gregory L. Fumarolo Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allen L. Ruffin, November 13, 2015 Appellant-Defendant, Court of Appeals Case No. 02A05-1504-CR-140 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Samuel R. Keirns, Appellee-Plaintiff. Magistrate Trial Court Cause No. 02D05-1201-FD-94

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 1 of 9

STATEMENT OF THE CASE

[1] Appellant-Defendant, Allen L. Ruffin (Ruffin), appeals the revocation of his

probation. [2] We affirm.

ISSUE

[3] Ruffin raises one issue on appeal, which we restate as follows: Whether the

trial court abused its discretion by revoking Ruffin’s probation.

FACTS AND PROCEDURAL HISTORY

[4] On June 14, 2007, Ruffin was charged under Cause Number 02D04-0706-FB-

90 (Cause FB-90) with burglary, a Class B felony, Ind. Code § 35-43-2-1(1)

(2006); and receiving stolen property, a Class D felony, I.C. § 35-43-4-2(b)

(2006). Ruffin pled guilty to burglary, and the State dismissed the receiving

stolen property charge. On February 11, 2008, Ruffin was sentenced to the

Indiana Department of Correction (DOC) for ten years, with four years

suspended and two years of probation. On November 8, 2010, Ruffin was

accepted into the ReEntry Court Program at Allen County Community

Corrections; however, his participation in the ReEntry Court Program was

terminated on October 31, 2011, due to non-compliance. On December 13,

2011, Ruffin was ordered to complete his sentence in the DOC for a period of

four years, with two years suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 2 of 9 [5] On January 23, 2012, the State filed an Information in the present case, Cause

Number 02D05-1201-FD-94 (Cause FD-94), charging Ruffin with one Count of

counterfeiting, a Class D felony, I.C. § 35-43-5-2(a)(2)(D) (2011). Ruffin was

alleged to have committed this offense on October 13, 2011, while he was

serving his sentence in community corrections in Cause FB-90. On June 15,

2012, Ruffin pled guilty. On July 30, 2012, pursuant to the terms of Ruffin’s

plea agreement, the trial court sentenced him to a term of two years, with 183

days executed in the DOC and the remaining one year and 182 days suspended

to probation. As a condition of probation, Ruffin was ordered, in part, that he

“shall behave well” and “shall not abuse alcohol or use drugs.” (Appellant’s

App. p. 56). [6] On May 23, 2013, the State filed a verified petition in Cause FD-94 to revoke

Ruffin’s probation, asserting that he had failed to “maintain good behavior.”

(Appellant’s App. p. 58). In particular, the revocation petition alleged that on

May 4, 2013, Ruffin committed the additional crimes of resisting law

enforcement with the use of a vehicle, a Class D felony, I.C. § 35-44.1-3-1(a)(3),

(b)(1)(A) (2012); resisting law enforcement, a Class A misdemeanor, I.C. § 35-

44.1-3-1(a) (2012); and failure to stop after an accident resulting in non-vehicle

property damage, a Class B misdemeanor, I.C. §§ 9-26-1-4; -8(b). On May 9,

2013, the State filed an Information under Cause Number 02D06-1305-FD-521

(Cause FD-521), charging Ruffin with these new offenses. On August 23, 2013,

Ruffin pled guilty to the Class D felony and the Class B misdemeanor, and the

State dismissed the Class A misdemeanor. On September 27, 2013, Ruffin was

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 3 of 9

sentenced to the DOC for one and one-half years. Also on September 27, 2013,

Ruffin admitted that he violated the terms of his probation in Cause FD-94.

Instead of revoking his probation, the trial court ordered that he be “returned to

probation, subject to the same conditions ordered by [the trial] [c]ourt on [July

30, 2012]” with the additional stipulation of “zero tolerance.” (Appellant’s

App. p. 71). However, the trial court revoked Ruffin’s probation under Cause

FB-90, and he was ordered to serve a two-year sentence in the DOC. The

sentences under Causes FB-90, FD-94, and FD-521 were ordered to be served

consecutively. [7] On October 29, 2014, the trial court approved Ruffin’s placement in a

community transition program in Causes FB-90 and FD-521; he subsequently

returned to the ReEntry Court Program. Between November 16, 2014, and

January 16, 2015, Ruffin violated the ReEntry Court Program’s rules on twenty

separate occasions. Consequently, on January 26, 2015, Ruffin’s participation

in ReEntry Court was terminated. [8] On January 27, 2015, the State filed another verified petition to revoke Ruffin’s

probation in Cause FD-94, again asserting that Ruffin “[d]id not maintain good

behavior.” (Appellant’s App. p. 74). Specifically, the revocation petition

alleged that “[o]n January 26, 2015, [Ruffin] was terminated from the ReEntry

Court Program under consecutive cause numbers [FB-90] and [FD-521], due to

testing positive for synthetic marijuana and failing to attend appointments as

instructed.” (Appellant’s App. p. 74). On March 17, 2015, following a hearing,

the trial court found that the State proved “by [a] preponderance of evidence

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 4 of 9

that [Ruffin] violated the terms and conditions of probation.” (Appellant’s

App. p. 86). Therefore, the trial court revoked Ruffin’s probation and ordered

his commitment to the DOC to execute the entirety of his suspended

sentence—i.e., one year and 182 days—to be served consecutively to his

sentences under Causes FB-90 and FD-521. 1 [9] Ruffin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[10] Ruffin claims that the trial court abused its discretion by revoking his probation

and imposing his suspended sentence under Cause FD-94. It is well established

that “defendants are not entitled to serve their sentences in a probation

program.” Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004). Rather,

“[p]robation is a matter of grace” and is left to the discretion of the trial court.

Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). If the trial court finds

that a person has violated a condition of probation at any time prior to the end

of the probationary period, the trial court may:

(1) Continue the person on probation, with or without modifying or enlarging the conditions. (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.

1 By the time of Ruffin’s July 30, 2012 sentencing hearing in Cause FD-94, he had already served the executed portion of his sentence (i.e., 183 days). However, it is undisputed that when his probation was revoked on March 17, 2015, Ruffin had not yet begun his probationary period under Cause FD-94 because he was still serving his executed sentence(s) under Causes FB-90 and/or FD-521.

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 5 of 9

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

I.C. § 35-38-2-3(h). [11] Probation revocation proceedings are civil in nature. Marsh, 818 N.E.2d at 148.

Therefore, the State is required to prove a probation violation “by a

preponderance of the evidence.” I.C. § 35-38-2-3(f). On appeal, our court

reviews the trial court’s decision to revoke probation for an abuse of discretion.

Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015). It is an abuse of

discretion if the trial court’s “decision is clearly against the logic and effect of

the facts and circumstances before the court.” Id. We will consider the

evidence most favorable to the trial court’s judgment to decide “whether there is

substantial evidence of probative value supporting revocation.” Marsh, 818

N.E.2d at 148. In making this determination, we neither reweigh evidence nor

assess the credibility of witnesses. Id. [12] In this case, the trial court revoked Ruffin’s probation after he was terminated

from the ReEntry Court Program for failing to attend his appointments as

instructed and for failing a drug test. Ruffin’s probation conditions, which he

signed on July 30, 2012, explicitly state that he must “behave well” and abstain

from any drug use. (Appellant’s App. p. 56). “It is well settled that violation of

a single condition of probation is sufficient to revoke probation.” Gosha, 873

N.E.2d at 663. Here, the evidence clearly establishes that Ruffin repeatedly

violated the rules of his community corrections program and abused drugs.

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 6 of 9

Accordingly, we find that it was well within the discretion of the trial court to

revoke Ruffin’s probation and re-institute his previously suspended sentence. [13] Although Ruffin does not dispute that he violated the rules of community

corrections and engaged in drug use, he nevertheless directs our attention to the

trial court’s order of September 27, 2013, where—despite his clear probation

violation—the trial court did not revoke Ruffin’s probation in Cause FD-94.

Rather, the trial court permitted Ruffin to return to probation with the added

condition of “zero tolerance.” (Appellant’s App. p. 71). Ruffin asserts that

“[l]ogically, [he] could not begin this probation period until finishing the

executed sentences in FB-[9]0 and FD-521.” (Appellant’s Br. p. 11). As such,

he now insists that “[s]imply because a mandatory ReEntry program briefly

interrupted him serving the executed sentence in [Causes FB-90 and FD-521,]

[this] does not provide a valid reason as to why Ruffin should not now get the

benefit of the September 27, 2013 order in FD-94.” (Appellant’s Br. p. 12). In

other words, Ruffin posits that he should be permitted to complete “his

probation in Cause FD-94 pursuant to the order of September 27, 2013[,] after

completing the executed time in [Causes FB-90 and FD-521].” (Appellant’s Br.

p. 12). [14] Regardless of the fact that Ruffin had not yet begun to actively serve the

probationary part of his sentence in FD-94 at the time of revocation, it is well

settled that “[t]he probationary period begins immediately after sentencing and

ends at the conclusion of the probationary phase of the defendant’s sentence.”

Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). Here, Ruffin was

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 7 of 9

sentenced on July 30, 2012, and was informed of the conditions of his

probation the same day. Thus, Ruffin’s probation was subject to prospective

revocation for any violation committed between July 30, 2012, and the

expiration of his probation term. See Lampley, 31 N.E.3d at 1037. Although

Ruffin acknowledges this longstanding precedent, he nonetheless argues that

“the rule permitting the court to revoke probation before [Ruffin] enters the

probationary phase of his sentence ought not to apply in this case because the

violations were a part of the ReEntry Court cases and not a part of the

supervision in the case being appealed as Ruffin was not actively satisfying his

sentence in FD-94 when the violations in ReEntry Court were committed.”

(Appellant’s Br. p. 11). We find no merit in Ruffin’s argument. [15] Our court has previously “expressly declined to hold that a defendant could

‘commit any number of offenses’ between the date of sentencing and beginning

his official probation term without any consequence therefor.” Baker v. State,

894 N.E.2d 594 (Ind. Ct. App. 2008). The fact that Ruffin’s conduct resulted in

his termination from the ReEntry Court Program in Causes FB-90 and FD-521

does not negate the fact that the same behavior also constituted a violation of

his probation terms under Cause FD-94. Moreover, the trial court accorded

significant leniency to Ruffin in September of 2013 by not revoking his

probation at that time, and Ruffin was fairly warned that the court would

impose “zero tolerance” for future violations. (Appellant’s App. p. 71).

Despite his numerous opportunities to serve his sentences in DOC alternatives,

Ruffin disrespected the trial court’s authority by repeatedly violating the

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 8 of 9

conditions of his release and committing new offenses. Thus, it is evident that

commitment to the DOC is necessary in order to deter Ruffin’s criminal

behavior. Accordingly, we decline to undermine the trial court’s explicit “zero

tolerance” condition and affirm the revocation of Ruffin’s probation.

(Appellant’s App. p. 71).

CONCLUSION

[16] Based on the foregoing, we conclude that the trial court acted within its

discretion in revoking Ruffin’s probation. [17] Affirmed. [18] Brown, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 02A05-1504-CR-140 | November 13, 2015 Page 9 of 9