Clayton Frazier 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 Jul 13 2020, 8:39 am court except for the purpose of establishing CLERK 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 COURT OF APPEALS OF INDIANA

Clayton Frazier, July 13, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-255 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Mark Dudley, Judge Trial Court Cause No. 48C06-1710-F5-2565

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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

affirm.

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

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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

sanction. 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 are

without merit.1

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

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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.

2 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.

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