Brian Clinton Judd v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Aug 17 2017, 7:15 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Richard Walker Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Brian Clinton Judd, August 17, 2017

Appellant-Defendant, Court of Appeals Case No. 48A02-1611-CR-2726 v. Appeal from the Madison Circuit Court. The Honorable Mark Dudley, Judge. State of Indiana, Trial Court Cause No. Appellee-Plaintiff. 48D01-0806-FB-145

Sharpnack, Senior Judge

Statement of the Case [1] Brian Judd appeals the trial court’s imposition of a portion of his previously

suspended sentence following the revocation of his probation. We affirm.

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Issues [2] Judd presents two issues for our review, which we restate as:

I. Whether the State presented sufficient evidence of a probation violation. II. Whether the trial court abused its discretion by ordering Judd to serve five years of his suspended sentence for violating his probation.

Facts and Procedural History [3] On January 12, 2009, pursuant to a plea agreement, Judd pleaded guilty but

mentally ill to criminal confinement as a Class B felony and domestic battery as

a Class A misdemeanor. The plea agreement additionally stated that any

executed time would be capped at six years. The trial court sentenced Judd to

an aggregate term of fourteen years with six years executed and eight years

suspended to probation. [4] Thereafter, on May 27, 2015, the State filed a notice of probation violation

alleging that Judd had violated his probation by committing the offense of

domestic battery. Judd denied the allegation, and an evidentiary hearing was

held on June 16, 2015. The court found Judd in violation of his probation and

ordered no punitive sanction imposed beyond the twenty-seven days Judd had

served. He was returned to probation under all the original terms and

conditions, including a no contact order with regard to the victim. [5] On August 27, 2015, the State filed a second notice of probation violation. It

alleged that Judd had violated his probation by violating the no contact order.

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Judd admitted the violation and was ordered to serve one year of his suspended

sentence. [6] The State filed a third notice of probation violation on October 4, 2016, alleging

that Judd had violated his probation again by committing the criminal offense

of domestic battery, a Level 5 felony, and by taking substantial steps toward

committing the criminal offense of possession of a syringe, a Level 6 felony. In

addition, the notice alleged that Judd had failed to abstain from the use of illicit

drugs. This allegation was based upon Judd’s September 20, 2016 drug screen

in which he tested positive for methamphetamine/amphetamine. Finally, the

notice alleged that Judd had violated his curfew on September 15, 2016. [7] An evidentiary hearing was held at which Judd admitted the allegation that he

had failed to abstain from using drugs. Evidence was presented on the

remaining allegations, and the court found Judd had violated his probation by

taking substantial steps toward committing the offense of possession of a

syringe and that he had violated his curfew. The court sentenced him to five

years of his suspended sentence and continued probation upon his release.

Discussion and Decision I. Sufficiency of the Evidence

[8] Although Judd claims he is presenting only one issue to this Court, he cursorily

suggests in his brief that there was insufficient evidence to show that the syringe

found by a probation officer was his.

Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2726 | August 17, 2017 Page 3 of 7 [9] The State need only prove a probation violation by a preponderance of the

evidence. Ind. Code § 35-38-2-3(f) (2015); Murdock v. State, 10 N.E.3d 1265,

1267 (Ind. 2014). When the sufficiency of the evidence is at issue in a

probation violation case, we consider only the evidence most favorable to the

judgment, without regard to weight or credibility, and we will affirm if there is

substantial evidence of probative value to support the trial court’s conclusion

that the probationer has violated any condition of probation. Murdock, 10

N.E.3d at 1267. [10] The evidence most favorable to the trial court’s determination shows that a

probation officer performed a search of Judd’s home and found in Judd’s

bedroom a syringe in a dresser drawer that contained both men’s and women’s

clothing. The entirety of Judd’s argument on this issue is: “Absent any

evidence that Judd wore both men and women’s underwear it is just as likely as

not that the syringe was found in a drawer used by a female.” Appellant’s Br.

p. 13. The syringe was found in Judd’s bedroom in his house; thus, the State

presented sufficient evidence to permit the trial court to find by a preponderance

of the evidence that the syringe was Judd’s. Judd’s argument amounts to

nothing more than a request to reweigh the evidence, which we will not do. [11] Moreover, even without considering the discovery of the syringe, the State

proved Judd violated two additional conditions of his probation. Violation of a

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

774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002), trans. denied. Furthermore, Judd

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acknowledges that his admission to testing positive for methamphetamine is a

sufficient basis, by itself, to violate his probation. See Appellant’s Br. p. 13.

II. Sentence [12] Judd contends the trial court abused its discretion when, upon revoking his

probation, it ordered him to serve five years of his suspended sentence. At the

time of the alleged violations contained in Judd’s third notice of probation

violation, Indiana Code section 35-38-2-3(h) provided that if the court finds a

violation of a condition of probation, it may: (1) continue the person on

probation, with or without modifying the conditions; (2) extend the person’s

probationary period for not more than one year; and/or (3) order execution of

all or part of the sentence that was suspended at the time of initial sentencing.

A trial court’s sentencing decisions for probation violations are reviewed for an

abuse of discretion. Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App.

2009). An abuse of discretion occurs when the decision is clearly against the

logic and effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184,

188 (Ind. 2007). [13] Judd asserts that his violations do not justify the imposition of a five-year

sentence. A defendant is not entitled to serve a sentence on probation; rather,

such placement is a matter of grace and a conditional liberty that is a favor, not

a right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.

Further, probation is a criminal sanction wherein a convicted defendant

specifically agrees to accept conditions upon his behavior in lieu of

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imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),

trans. denied. These restrictions are designed to ensure that the probation serves

as a period of genuine rehabilitation and that the public is not harmed by a

probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148

(Ind. Ct. App. 2005). [14] Judd violated his probation in May 2015, quickly followed by another violation

in August 2015, which was a breach of the protective order put in place as a

result of his violation just 3 months prior. He then added three more violations

to his record in September 2016, which are the basis of this appeal. Although

accepting probation and thereby agreeing to limitations on his behavior in lieu

of further jail time, Judd has repeatedly demonstrated his unwillingness to

comply with the conditions of his probation and to conform his behavior to lead

a law-abiding life, even when under court order to do so. Furthermore, he

failed to take advantage of the opportunity to change his behavior when the

court afforded him leniency in his initial transgression and again when he was

ordered to serve a relatively small portion of his suspended sentence for his

second violation. At the evidentiary hearing in this matter, the judge remarked

upon his belief in “giving people opportunities” and the fact that for a previous

violation the State had requested that Judd serve four years of his suspended

sentence but the court did not “go along with it at that point.” Tr. p. 67. The

judge also explained to Judd that he had already admitted to not following the

rules of probation when he admitted to failing his drug screen and that this

violation alone is enough to revoke Judd’s entire suspended sentence given his

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“repeat behavior.” Id. The judge concluded by saying that “enough is enough”

– Judd should be proving himself worthy of being in the community and he has

done the opposite. Id. at 67-68. As the judge alluded to, there is nothing to

suggest that Judd will suddenly change his behavior and comply with his

probation conditions in the future.

Conclusion [15] For the reasons stated, we conclude there was sufficient evidence for the trial

court to find the syringe was Judd’s and that the trial court properly exercised

its discretion in ordering Judd to serve five years of his previously suspended

sentence upon revocation of his probation in this matter. [16] Affirmed.

Baker, J., and May, J., concur.

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