MORAN v. STATE (2024)

MEMORANDUM DECISION

[1] Shawn Demetrius Moran appeals the revocation of his probation. We affirm.

Facts and Procedural History

[2] In January 2022, Moran pled guilty to dealing in a Schedule IV controlled substance as a level 5 felony in cause number 84D01-2106-F5-1949 (“Cause No. 1949”), and the trial court sentenced him to five years with one and one-half years executed as a direct placement on work release, two and one-half years served as a direct placement on in-home detention, and one year suspended to probation. In September 2022, the State filed a petition to revoke alleging Moran violated his direct placement, and the court ordered that he serve 120 days of the direct placement in jail and the balance on work release.

[3] On February 24, 2023, the State filed another petition to revoke alleging that Moran violated his direct placement by not providing proof of his whereabouts on January 5 and February 14 and unauthorized possession of property on February 14. On March 6, 2023, the State filed an information charging Moran with failure to return to lawful detention as a level 6 felony under cause number 84D01-2303-F6-885 (“Cause No. 885”) alleging that he failed to return to lawful detention in the work release program on March 2, 2023. Also on March 6, the State filed an amended petition to revoke in Cause No. 1949 which included an allegation that Moran violated his direct placement by failing to return to community corrections on March 2.

[4] On November 15, 2023, the court issued an order indicating that, pursuant to a plea agreement, Moran admitted that he violated the terms of his direct placement in Cause No. 1949 as set forth in the petition to revoke filed on February 24 and pled guilty in Cause No. 885. The plea agreement provided that, in Cause No. 885, the State would recommend that Moran be sentenced to one year to be served on work release. It provided that, in Cause No. 1949, the State would recommend that Moran be returned to work release for the balance of his direct commitment of four years and that the State agreed not to revoke his probation. It provided the sentences imposed in Cause Nos. 885 and 1949 would be served consecutively. The court sentenced Moran accordingly.

[5] On February 21, 2024, the State filed a “Petition to Revoke Direct Placement and/or Revoke Probation” in Cause Nos. 885 and 1949. Appellant's Appendix Volume II at 115. The petition alleged in paragraph 3 that Moran “violated his direct placement and/or his probation as follows”: (a) Moran received a report of conduct for unauthorized possession of property on February 2, 2024; (b) he received a report of conduct for failure to return to Vigo County Community Corrections (“VCCC”) within the prescribed time limits on February 7 ¹ ; (c) he received a report of conduct for unauthorized possession of property on February 12; (d) he received a report of conduct for unauthorized possession of property on February 13; (e) he received a report of conduct for refusing mandatory programming on February 14; and (f) “[d]ue to the state of Mr. Moran, an ambulance was called to transfer him to the ER for medical evaluation․ VCCC does not have the medical staff to provide medical care to participants under the influence of synthetic substances.” Id. at 116-117.

[6] On March 20, 2024, the court held an evidentiary hearing. Haley Lindley, a case manager with VCCC, testified that, with respect to the allegations in paragraph (3)(e) of the petition to revoke, Moran failed to take medications as prescribed for three days as required by his mandatory programming on work release. With respect to the allegations in paragraph 3(a), (c), and (d) of the petition, she testified that Moran received reports of conduct for unauthorized possession of property because he possessed cigarette lighters and cigarettes which were not permitted in the dorms. With respect to paragraph (3)(b), Lindley testified that Moran received a report of conduct for failure to return to VCCC within the prescribed time limits, he was scheduled to return at 9:00 p.m., and he did not return until 10:00 p.m. She indicated that Moran was required to comply with the rules for work release, “[t]hey're required to fill out their schedules,” “whenever they clock out from community corrections, ․ the CO's have to release them,” “[t]hey're scheduled to return at this certain time, then they're required to return by that certain time as well,” “[t]hat's all monitored through our scheduling system,” and “[i]f they're not back by their scheduled time in then it will start blinking red on the CO's screens.” Transcript Volume II at 13-14. When asked “[t]he defendant did ultimately return though,” she replied: “Right, yes. And they are given a chance to explain their selves, why they were gone․ Or provide proof from their work, or wherever they were, as to why they were late.” Id. at 14. When asked if Moran provided a reason, she replied “[n]o, not that I know of.” Id. at 15.

[7] The trial court found the State carried its burden as to paragraphs (3)(a) through (e) of the petition and failed to carry its burden as to paragraph (3)(f). Following a dispositional hearing, the court issued an order that Moran's one-year sentence in Cause No. 885 be revoked to the Department of Correction (“DOC”). The order also provided: “In [Cause No. 1949], the four (4) year direct placement, and one (1) year suspended sentence, totaling five (5) years, are revoked to the [DOC].” Appellant's Appendix Volume II at 130.

Discussion

[8] Moran maintains the trial court abused its discretion in revoking his one-year period of probation under Cause No. 1949 ² and argues:

The State did not present any testimony or exhibits regarding the conditions of Moran's probation. Consequently, there is no evidence to show that Moran violated one of those conditions. Some conditions are always included as part of probation, including not committing any new criminal offenses. However, taking medication, returning to the work facility on time, and refraining from possessing tobacco and cigarette lighters are not normally conditions probationers must follow. But even if they were, the State still had the burden to prove Moran was required to comply with those conditions as part of his probation.

Appellant's Brief at 8.

[9] The State asserts that Moran violated his probation by committing a new crime when he failed to return to the community corrections center at his scheduled time. It argues Moran was scheduled to return by 9:00 p.m. on February 7, 2024, but did not return until 10:00 p.m. The State cites Ind. Code § 35-44.1-3-4(d).³

[10] In reply, Moran argues the court did not find that he committed a criminal offense, the State never alleged that he committed the offense of failure to return to lawful detention as a level 6 felony, the State “only alleged that [he] violated ‘code 250(D),’ ” the State did not introduce “a copy of the codes for the work release program,” and “there is no evidence that code 250(D) contains all the elements to establish Level 6 felony failure to return to lawful detention.” Appellant's Reply Brief at 5-6. He also argues that he returned to lawful detention and did not commit a criminal offense.

[11] We review a trial court's probation revocation determination for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Id. (citing Ind. Code § 35-38-2-3). 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. Id. 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. Id. The State must prove a violation by a preponderance of the evidence. Ind. Code § 35-38-2-3(f). Proof of a single violation of the conditions of a defendant's probation is sufficient to support a trial court's decision to revoke probation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997).

[12] Even assuming the State failed to show that Moran's conduct of not taking medications and unauthorized possession of lighters and cigarettes, as alleged in Paragraph 3(a), (c), (d), and (e) of the petition, constituted violations of the conditions of Moran's probation, we cannot say that reversal is warranted. It is always a condition of probation that a probationer not commit an additional crime. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995), reh'g denied. In its petition to revoke, the State alleged:

3. The defendant has violated his direct placement and/or his probation as follows:

* * * * *

(b) On February 7, 2024, Mr. Moran received a report of conduct for violation of code 250(D) – Failure to Return to the Center Within the Prescribed Time Limits. Mr. Moran was scheduled to return to VCCC at 9:00 p.m. but did not return until 10:00 p.m. Mr. Moran attended a disciplinary hearing and it was recommended imposition of suspended sanction of deprivation of 7 days earned credit time.

Appellant's Appendix Volume II at 116. Ind. Code § 35-44.1-3-4(d) provides that “[a] person who knowingly or intentionally fails to return to lawful detention following temporary leave granted for a specified purpose or limited period commits failure to return to lawful detention, a Level 6 felony.” While the State did not introduce “code 250(D)” at the evidentiary hearing, we note that the conduct alleged in Paragraph 3(b) above that Moran failed to return to VCCC until 10:00 p.m. when he was scheduled to return at 9:00 p.m. constitutes an offense under Ind. Code § 35-44.1-3-4(d) and grounds for revoking Moran's probation. We cannot conclude the trial court abused its discretion in revoking Moran's probation under Cause No. 1949.

[13] For the foregoing reasons, we affirm the trial court's order.

[14] Affirmed.

FOOTNOTES

1.   Paragraph 3(b) of the petition to revoke alleged:On February 7, 2024, Mr. Moran received a report of conduct for violation of code 250(D) – Failure to Return to the Center Within the Prescribed Time Limits. Mr. Moran was scheduled to return to VCCC at 9:00 p.m. but did not return until 10:00 p.m. Mr. Moran attended a disciplinary hearing and it was recommended that the suspended sanction of deprivation of seven days earned credit time be imposed.Appellant's Appendix Volume II at 116.

2.   Moran does not challenge the revocation of his placement on work release under Cause No. 885 or the revocation of the balance of his four-year placement on work release under Cause No. 1949.

3.   Ind. Code § 35-44.1-3-4(d) provides that “[a] person who knowingly or intentionally fails to return to lawful detention following temporary leave granted for a specified purpose or limited period commits failure to return to lawful detention, a Level 6 felony.”

Brown, Judge.

Mathias, J., and Kenworthy, J., concur.