Opinion
23A-CR-1173
09-21-2023
Aron Ray Hall, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Andrew Adams Adams Law Office Jeffersonville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jefferson Superior Court The Honorable Blaine S. Goode, Judge Trial Court Cause Nos. 39D01-2201-CM-69 39D01-2205-F6-545
ATTORNEY FOR APPELLANT Andrew Adams Adams Law Office Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Aron Ray Hall appeals the revocation of his probation. We affirm.
Facts and Procedural History
[¶2] On January 19, 2022, the State charged Hall under cause number 39D01-2201-CM-69 ("Cause No. 69") with Count I, invasion of privacy as a class A misdemeanor, and Count II, trespass as a class A misdemeanor. On May 26, 2022, the State charged Hall under cause number 39D01-2205-F6-545 ("Cause No. 545") with Count I, criminal recklessness as a level 6 felony, and Count II, invasion of privacy as a class A misdemeanor.
[¶3] In May 2022, Hall and the State entered a plea agreement. Pursuant to the agreement, Hall pled guilty to Count I, invasion of privacy as a class A misdemeanor under Cause No. 69, and Count I, criminal recklessness as a level 6 felony under Cause No. 545. The State agreed to dismiss all remaining counts in Cause Nos. 69 and 545 as well as cause numbers 39D01-2109-F6-992 and 39D01-2111-CM-1204. The parties agreed that Hall would be sentenced to consecutive terms of 360 days with 360 days suspended to probation for invasion of privacy as a class A misdemeanor under Cause No. 69 and 368 days with 358 days suspended to probation for criminal recklessness as a level 6 felony under Cause No. 545. The court accepted the plea agreement and sentenced Hall pursuant to the agreement.
[¶4] On December 5, 2022, the State filed a Verified Petition to Revoke Probation under Cause Nos. 69 and 545 alleging that Hall: tested positive for methamphetamine and amphetamine on October 25, 2022; tested positive and/or admitted to using methamphetamine and amphetamine on July 12, 2022, August 23 and 24, 2022, and September 14 and 19, 2022; was unsuccessfully discharged from the Matrix program "for attendance" on October 31, 2022; was unsuccessfully discharged from LifeSpring for noncompliance on November 14, 2022; failed to attend or obtain permission to reschedule probation appointments on September 26, 2022, and November 10, 2022; failed to report for multiple drug screens; and failed to call the "UDS line" multiple times. Appellant's Appendix Volume II at 101.
[¶5] On April 26, 2023, the court held a hearing. Hall testified that he understood the terms and conditions of his probation and admitted that he violated those terms by "testing positive." Transcript Volume II at 5. He admitted that he was given the opportunity to be in the Matrix program and was discharged from the program. He indicated he was in LifeSpring but acknowledged he had previously been given an opportunity to utilize LifeSpring and was discharged in November 2022. He acknowledged he failed to show up for some appointments and report for drug screens. He testified that he missed two appointments at LifeSpring due to a funeral.
[¶6] On cross-examination by his counsel, Hall testified that he felt he was doing "really well" at LifeSpring and it was very important to him to attend. Id. at 7. He also indicated that the last time he "used" was "way before Christmas" and before he was incarcerated. Id. at 9. He testified he was self-employed doing lawn maintenance.
[¶7] Jefferson County Probation Officer Ani Bridges testified that she recommended revocation. Specifically, she stated:
In all honesty, my recommendation would be . . . revocation. I don't come to court for a technical violation very easily. [] I had extreme problems with [his] honesty. I can't help someone if they're not honest with me. We had nine total screens, two of which were negative, one came back as dilute results. Six of those were positive, and on four of those he continued to deny until we had to send them to the lab to get results. After each appointment when we would have a positive screen, I would bring him to my office and say "I can't help you if you're not honest with me." Continued to deny use; I don't know why it's testing positive. I had a lot of problems with [him] accepting responsibility. From our first appointment, he was only there because of Holly. It was her actions that brought him there. I would redirect and try to challenge that anti-social thinking. When - when he would deny and I was not going to count it as positive until we would get the results from the lab. I had scheduled an appointment out letting him know hey, if these come back positive we will have another appointment sooner so we can address this. At the last - some of the last communications were when I tried to get him to come in earlier due to having positive screens where his responses to me were "those results better be negative." I - his behavior in the time I supervised him does not show me that he wants to change.Id. at 12-13.
[¶8] The court admitted an email message dated April 17, 2023, from Rachel Humphrey, Hall's therapist at LifeSpring, to Probation Officer Bridges, which stated that Hall was "on an attendance contract due to his inconsistency in attendance," Hall was given two verbal warnings about his attendance before implementation of a written contract, and that "[w]hen discharged previously, he should have been placed on the six month waiting list due to his noncompliance, however, he was given the opportunity to have this waved [sic]." Exhibits Volume I at 7.
[¶9] The court stated:
What I see is that this was set for a fact finding hearing on the allegations which have been admitted, and the parties agreed to continue that to see how he did, and what I see is that he was not completely honest in his original testimony when [the prosecutor] was doing direct examination. He talked about only missing two appointments, which were on the same date, and he missed that because of a funeral, but according to this email from LifeSprings . . . he was given two verbal warnings prior to that. And, so I think that what Ms. Bridges testified about in regard to the difficulty she had with him about honesty that that continues. He really, I believe, probably needs to be perfect at LifeSpring. He was not. I think he's being dishonest today. He can talk about that he's not using but he hasn't been screened at all. Ms. Bridges testified that when she was screening that he would deny use, deny use, deny use, and they'd have to send it off and it would come back positive. The dilute is very concerning to me. If people are cheating their drug screens, then there's no way to supervise them. As everyone knows, the Supreme Court has said a number of times that probation is a matter of grace instead of an executed sentence to prison or jail. You've been granted that. I've worked with Ms. Bridges on many, many cases and I know when . . . someone tests positive she tries to work with them. When they miss appointments, she tried to work with them. When she testified that she doesn't take technical uh - you know - it takes a lot for her to file a petition to revoke on technical violations only. Her testimony carries weight with me. And so you've been given opportunities, and you've squandered them, frankly, okay? I don't believe that you have learned your lesson.
I think that you're playing the system over at LifeSpring, and they are social workers, and they are going to continue you in programming until they just absolutely can't do that. The court system doesn't have to do that, okay. You were given you [sic] opportunity through the court system. You chose to continue using Methamphetamine. You chose to continue to skip appointments and that's just not going to be tolerated.Transcript Volume II at 15-16.
[¶10] That same day, the court entered an order finding that Hall violated the terms and conditions of probation as set out in the petition. The court ordered that 360 days of the previously ordered sentence under Cause No. 69 be revoked and gave Hall credit for time previously served of twenty days. It ordered that 358 days of the previously suspended sentence under Cause No. 545 be revoked and ordered the sentences to be served consecutively.
Discussion
[¶11] Hall asserts that the revocation of his entire sentence was "inappropriate in light of his situation and character and the nature of his violation ...." Appellant's
Brief at 8. He asserts that he had engaged in treatment with LifeSpring, was self-employed doing lawn service, and had obtained housing. He contends that imprisonment without treatment is inappropriate because it does not serve a rehabilitative purpose.
[¶12] Ind. Code § 35-38-2-3(h) provides:
If the 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 may impose one (1) or more of the following sanctions:
(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.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
[¶13] We review trial court probation violation determinations and sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court has explained that "[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed" and that, "[i]f 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." Prewitt, 878 N.E.2d at 188. When reviewing an appeal from the revocation of probation, we consider only the evidence most favorable to the judgment, and we will not reweigh the evidence or judge the credibility of the witnesses. Vernon v. State, 903 N.E.2d 533, 536 (Ind.Ct.App. 2009), trans. denied. As long as the proper procedures have been followed in conducting a probation revocation hearing, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence. Goonen v. State, 705 N.E.2d 209, 212 (Ind.Ct.App. 1999).
[¶14] The record reveals that Hall admitted he violated the terms and conditions of his probation by "testing positive." Transcript Volume II at 5. He admitted that he was given the opportunity to be in the Matrix program and was discharged from that program and was discharged from LifeSpring in November 2022. He further acknowledged he failed to show up for appointments and report for drug screens. Probation Officer Bridges recommended revocation. The trial court observed that Hall had been given opportunities and had squandered them.
[¶15] In light of the record, we cannot say the trial court abused its discretion in revoking Hall's probation and ordering that he serve the remainder of his previously suspended sentence.
[¶16] For the foregoing reasons, we affirm the trial court's order.
To the extent Hall states that his sentence was inappropriate and cites Ind. Appellate Rule 7(B), we note that the Indiana Supreme Court has held that Ind. Appellate Rule 7(B) is not the correct standard to apply when reviewing a sentence imposed for a probation violation and that our review is confined to the abuse of discretion standard. See Prewitt, 878 N.E.2d at 188; see also Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (noting that a remedy under Ind. Appellate Rule 7(B) is not available on appeals from a probation revocation hearing); Milliner v. State, 890 N.E.2d 789, 793 (Ind.Ct.App. 2008) (noting that we do not review probation revocations under Ind. Appellate Rule 7(B) and that the court did not abuse its discretion in revoking the defendant's probation), trans. denied.
Vaidik, J., and Bradford, J., concur.