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Date: 02-07-2021
Case Style:
Ronnie L. Brown v. State of Indiana
Case Number: 20A-CR-01550
Judge: Edward W. Najam, Jr.
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Myriam Serrano
Deputy Attorney General
Defendant's Attorney:
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Description:
Indianapolis, IN - Criminal defense attorney represented Ronnie L. Brown with appealing the trial court’s revocation of his probation.
In December of 2016, the trial court sentenced Brown to an aggregate term of
twenty years executed following Brown’s convictions for dealing in cocaine, as
a Level 1 felony; dealing in cocaine, as a Level 4 felony; and possession of
marijuana, as a Class B misdemeanor. Thereafter, Brown moved for a
modification of his sentence and placement. In March of 2018, the trial court
granted Brown’s motion and ordered that the remainder of Brown’s sentence
would be suspended if Brown successfully completed three years of supervised
probation.
[3] On March 1, 2020, Delaware County Sheriff’s Deputy Tyler Parks observed a
vehicle being driven with no headlights on around midnight. Deputy Parks
initiated a traffic stop and observed that Brown was the driver of the vehicle.
The State filed its petition for the revocation of Brown’s probation shortly
thereafter. In its petition, the State alleged that Brown had committed the
following violations of the conditions of his probation:
1. Failed to see his Probation Officer or make any future office
appointments from September 13, 2018[,] to the date of his recent
arrest . . . .
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 3 of 9
2. Being arrested, cited[,] and charged on 08/03/2019 for Count
1: Driving While Suspended, a Class A Misdemeanor and
Count 2: A Class C Infraction in Cause 18H01-1608-CM001263 . . . .
3. Being arrested, cited[,] and charged on 12/08/2019 for Count
1: Driving While Suspended, a Class A Misdemeanor in Cause
18H01-1908-CM-002118 . . . .
4. Being arrested, incarcerated[,] and charged on 03/01/2020 for
Charge 1: Possession of Cocaine, a Level 6 Felony, Charge 2:
Obstruction of Justice, a Level 6 Felony, Charge 3: Resisting
Law Enforcement . . . , a Class A Misdemeanor and Charge 4:
Possession of Marijuana . . . , a Class A Misdemeanor in [Cause
18C02-2003-F5-31 (“Cause F5-31”)] . . . .
Appellant’s App. Vol. 2 at 230-31.
[4] While Cause F5-31 was pending, the trial court proceeded to consider the
alleged probation violations. At the fact-finding hearing, Brown’s counsel
asked the court not to permit the State to go into the substantive allegations
underlying Cause F5-31, as those allegations were pending and he had not yet
had the opportunity to pursue discovery relating to those allegations. The State
agreed to “not get into” the facts of that case, and the trial court instructed the
parties to “stick to the elements” of the case at hand. Tr. Vol. 2 at 5.
[5] The State then called Deputy Parks, who testified that he had observed Brown
committing the traffic offense of driving at night without headlights on, that he
had initiated a traffic stop of Brown’s vehicle, and that he had arrested Brown
after Brown had been taken to a hospital following the traffic stop. Deputy
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 4 of 9
Parks was not asked, and he did not testify, about the factual basis for the arrest
or the reason why Brown was transported to the hospital. The State then called
Brown’s probation officer, who testified that Brown had reported for four
appointments, but that the probation officer then “lost track” of him around
September of 2018. Id. at 13. However, Brown’s probation officer agreed that
Brown was also reporting to a second probation officer “in 2019” and that those
appointments were in lieu of Brown meeting with him. Id. at 16. The State
offered no testimony or other evidence concerning Brown’s appointments with
the second probation officer.
[6] In his closing argument to the court, Brown asserted that the State had not
presented any evidence that he had committed a new offense and instead had
only shown that he missed an undetermined number of appointments with his
probation officer. As Brown’s counsel summarized: “[It] puts a capital T in
technical. Over a twenty-year sentence. These are status violations. There’s no
evidence before the Court of any substantive offense being committed. They
are status violations.” Id. at 29. The court then clarified with the parties that it
was not taking judicial notice of the record in Cause F5-31 as that cause had
nothing “to do with this.” Id. at 31.
[7] The court then found that Brown had violated the conditions of his probation
“as enumerated” in the State’s petition for revocation, and the court revoked
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 5 of 9
Brown’s probation.
1
Appellant’s App. Vol. 3 at 73. The court ordered Brown
to serve sixteen years and 205 days of his previously suspended sentence in the
Department of Correction. This appeal ensued.
Discussion and Decision
[8] Brown asserts on appeal that the State failed to present sufficient evidence to
support the revocation of his probation. As our Supreme Court has often
stated:
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants.”). A probation hearing is civil in nature, and
the State must prove an alleged probation violation by a
preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
sufficiency of evidence is at issue, we consider only the evidence
most favorable to the judgment—without regard to weight or
credibility—and will affirm if “there is substantial evidence of
1
On appeal, the State notes that, during the probation officer’s testimony, there was discussion about
whether Brown had properly reported his arrests or any of his new charges to his probation officer, which the
State asserts is evidence that supports the trial court’s revocation of Brown’s probation. The State also asserts
that the evidence Brown had committed a headlight infraction supports the trial court’s judgment. But the
State’s petition for revocation did not allege that Brown had failed to report his arrests or his new charges or
that Brown had committed a headlight infraction, and the trial court’s order revoking Brown’s probation was
expressly limited to the reasons enumerated in the State’s petition. Accordingly, we must conclude that the
trial court did not consider those purported violations as a basis for the court’s revocation order.
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 6 of 9
probative value to support the trial court’s conclusion that a
probationer has violated any condition of probation.” Braxton,
651 N.E.2d at 270.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[9] The trial court found that Brown had violated the conditions of his probation
“as enumerated” in the State’s petition. Thus, we must consider the evidence in
support of the violations alleged in the petition. Appellant’s App. Vol. 3 at 73.
Count 1 of the State’s allegations was that Brown violated the conditions of his
probation when he missed appointments with his probation officer and failed to
schedule other appointments. The State’s evidence on this allegation was
imprecise. Brown’s probation officer testified that Brown missed some
scheduled appointments, but also that Brown made up some of those
appointments—the probation officer was just not sure which missed
appointments specifically were made up because he did not keep records that
showed when a later appointment replaced an earlier, missed appointment. See
Tr. Vol. 2 at 15-16. He also testified that Brown kept some of those
appointments with another probation officer. And he testified that his office
did not always keep records of phone calls into the office Brown might have
made. As Brown’s counsel summarized to the court at the end of the hearing:
the State . . . is asking the Court to execute twenty years based
on . . . that [Brown] missed some appointments with [his
probation officer]. He made most of them up. Now, the
evidence established he didn’t make all of them up, but he made
most of them up, and that he also called and . . . [the probation
officer] delegated supervision to [another officer] . . . .
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 7 of 9
Id. at 29.
[10] In Counts 2 and 3, the State alleged that Brown had committed traffic offenses
under two different cause numbers. Brown’s probation officer testified that
Brown had been arrested and charged for those alleged offenses. But being
arrested and charged is not, without more, evidence of a probation violation.
Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). As we explained in
Jackson:
“When a probationer is accused of committing a criminal
offense, an arrest alone does not warrant the revocation of
probation.” Johnson v. State, 692 N.E.2d 485, 487 (Ind. Ct. App.
1998). Likewise, the mere filing of a criminal charge against a
defendant does not warrant the revocation of probation. Martin
v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead,
when the State alleges that the defendant violated probation by
committing a new criminal offense, the State is required to
prove—by a preponderance of the evidence—that the defendant
committed the offense. Heaton [v. State], 984 N.E.2d [614,] 617
[(Ind. 2013)].
Id. Indeed, the new traffic offenses alleged in Counts 2 and 3 prove the point—
Brown presented evidence, without objection, that the State had dismissed both
of those offenses without an adverse finding against him. Thus, the State did
not present sufficient evidence to support either Count 2 or 3 of its petition.
[11] Finally, Count 4 of the State’s petition was that Brown had committed new
criminal offenses as charged in Cause F5-31. But Brown is correct on appeal
that the State’s only substantive evidence at the probation revocation hearing
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 8 of 9
that he had committed a new offense in support of that allegation was that he
had failed to use his headlights while driving at night, which was not, however,
an offense included in the State’s petition. Aside from that evidence, Deputy
Parks testified that he had arrested Brown and had caused Brown to be
transported to a local hospital, but the State did not ask, and Deputy Parks did
not testify, as to why either of those events occurred.
[12] At the end of the evidentiary hearing, the trial court emphasized that the facts
underlying Cause F5-31 were irrelevant to the petition for revocation and did
not have “anything to do with this.” Tr. Vol. 2 at 31. The court gave no weight
to Count 4. Thus, the State’s evidence did not include the commission of a new
offense as alleged in Count 4 of the petition. And, again, the court did not
revoke Brown’s probation for the headlight infraction, which the State did not
charge or include in the petition. See id.
[13] In sum, we cannot say that the trial court abused its discretion when it revoked
Brown’s probation for having missed an undetermined number of appointments
with his probation officer. But we conclude that the court abused its discretion
when it ordered Brown to serve the entire remaining term of sixteen years and
205 days in the Department of Correction as a result of those technical
violations. As our Supreme Court has made clear:
While it is correct that probation may be revoked on evidence of
violation of a single condition, the selection of an appropriate
sanction will depend upon the severity of the defendant’s probation
violation . . . . Given that the remaining . . . violations are
technical in nature, the trial court, in its discretion, may decide to
Court of Appeals of Indiana | Opinion 20A-CR-1550 | February 5, 2021 Page 9 of 9
continue the probationer on probation without modification. In
any event, such determination is better exercised by the trial
court [on remand].
Heaton, 984 N.E.2d at 618 (emphasis added; citation omitted).
[14] We are mindful that the trial court had previously granted Brown’s motion to
modify his original sentence, and we do not mean to suggest that Brown has
clean hands and is without fault. Nonetheless, while probation is a matter of
grace and not a right, we are obliged to reverse the trial court’s order that
Brown serve his entire remaining suspended sentence. We remand to the trial
court with instructions that the court resentence Brown in a manner
commensurate with the severity of missed appointments with his probation
officer, the only violation the State established on this record.
Outcome: Reversed and remanded with instructions.
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