Kelli J. Day, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] While on probation for resisting law enforcement, Kelli J. Day was charged with felony possession of methamphetamine. As those charges were pending, the State sought revocation of her probation in the resisting law enforcement case, alleging Day had violated the term of her probation prohibiting her from being charged with a new criminal offense “based upon probable cause.” App. Vol. II, p. 59. The trial court found that Day violated this condition and revoked only 270 days of her one-year term of probation, despite her history of probation violations in other cases.

[2] Day appeals, claiming that the State was required to prove that she not only was charged with the offense based on probable cause, but that she also committed it. She also challenges the 270-day revocation as unduly harsh. We affirm, finding that Day misstates the State's burden of proof under these circumstances and has not shown that the sanction is an abuse of discretion.

Facts

[3] In June 2022, Day pleaded guilty to Class A misdemeanor resisting law enforcement and was sentenced to 365 days imprisonment, all suspended to informal probation. The terms of her probation included a provision specifying: “You are not to be charged with any criminal offense, based upon probable cause, for the duration of your probation.” Exhs. Vol. I, p. 5.

[4] Day began serving this one-year term of probation in September 2022 after first completing a sentence in the Department of Correction arising from an earlier conviction. Six months into her probation, police discovered suspected methamphetamine and drug paraphernalia in Days's residence during a parole check. Day admitted the items belonged to her. The State charged Day with Level 6 felony possession of methamphetamine.

[5] The State then petitioned to revoke Day's probation, alleging she violated the conditions of her probation when she was charged with the new offense. While the methamphetamine charge was still pending, the trial court conducted a hearing on the revocation petition and found that Day violated the terms of her probation. It revoked 270 days of her previously suspended 365-day executed sentence. Day appeals.

Discussion and Decision

[6] “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). For that reason, we review a trial court's revocation of probation for an abuse of discretion, considering only the evidence most favorable to the judgment without reweighing the evidence or judging witness credibility. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). We will affirm the trial court's judgment “if there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation.” Hammann v. State, 210 N.E.3d 823, 832 (Ind. Ct. App. 2023) (quotations omitted), trans. denied.

[7] Probation revocation is a two-step process. “First, the trial court must make a factual determination that a violation of a condition of probation actually occurred.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation.” Id. The appropriateness of any sanction issued by the trial court “depend[s] upon the severity of the defendant's probation violation.” Id. at 618.

[8] Day challenges both the trial court's determination of a probation violation and the sanction it imposed. We find neither to be an abuse of the trial court's discretion.

I. Probation Violation Properly Proven

[9] Day claims that the State fell short of proving the probation violation because it did not show by a preponderance of the evidence that she committed the new methamphetamine offense. According to Day, proof that she had been charged was not enough. This argument fundamentally misconstrues the State's evidentiary burden.

[10] The State must prove a probation violation by a preponderance of the evidence. Ind. Code § 35-38-2-3(f). The specific condition that Day violated prohibited her from being “charged with any criminal offense, based upon probable cause, for the duration of [her] probation.” Exhs. Vol. I, p. 5 (emphasis added). The plain language of this condition does not require proof that Day committed a new offense. The State only needed to prove by a preponderance of the evidence that, during Day's probationary term, she was charged with a new offense and that the charge was based on probable cause.

[11] As Day concedes, the evidence shows that she was charged with Level 6 felony possession of methamphetamine and that this charge was supported by a judicial finding of probable cause. Appellant's Br., p. 15. Such proof was sufficient to justify the trial court's finding that Day violated a term of her probation.

[12] Though Day points to appellate decisions requiring proof that the new offense was committed, those cases involved different probation conditions—terms prohibiting probationers from committing new crimes or requiring them to “obey all laws.” See, e.g., Heaton, 984 N.E.2d at 615. Here, Day's probation condition was more restrictive, specifically prohibiting her from being charged with any offense based on probable cause. Accordingly, we also reject Day's argument that the court should have waited until the new charge was resolved. Neither Indiana law nor the terms of her probation required resolution of new charges before revocation proceedings could commence. See Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (“When the alleged probation violation is the commission of a new crime, conviction of the new crime is not required.”)

[13] Day's narrow challenge to the validity of the probation condition itself is no more persuasive. She claims that the probation condition's language of “based on probable cause” conflicts with Indiana Code § 35-38-2-3(f)’s “preponderance of the evidence” requirement. This argument fails because these standards serve different purposes and therefore coexist without conflict. The “probable cause” standard in the probation condition explains what the State has to show—a criminal charge based on probable cause—and Indiana Code § 35-38-2-3(f)’s language dictates how the State has to show it—by a preponderance of the evidence. The State met its burden under Indiana Code § 35-38-2-3(f) by proving by a preponderance of the evidence that Day violated the probation condition as written. The trial court did not abuse its discretion in finding the probation violation.

II. Imposed Sanction Not an Abuse of Discretion

[14] Day also contends the trial court abused its discretion in imposing a 270-day sentence, which she describes as unduly harsh. We disagree.

[15] Upon a finding that the defendant violated the conditions of probation, the trial court may continue the probation, extend the term of probation, or “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(h). We review a challenge to a trial court's choice of sanctions under this statute for an abuse of discretion. Heaton, 984 N.E.2d at 616. “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances ․ or when the trial court misinterprets the law.” Id.

[16] The trial court's sentence was not clearly against the logic and effect of the circumstances. First, Day has a lengthy criminal record which spans two decades and includes convictions for theft, driving while suspended, maintaining a common nuisance, resisting law enforcement with a vehicle, false informing, and carrying a handgun.

[17] Second, and most significantly, Day has an extensive history of unsuccessful compliance with community corrections. She committed four probation violations and violated her electronic home detention rules twice. In a recent separate prosecution, which arose from a Level 5 felony handgun offense, Day also failed to abide by the conditions of her electronic home detention and then faced three separate probation violation allegations, all of which she admitted were true. The trial court ultimately ordered her to serve the entire balance of her suspended sentence in that case. Given this history of noncompliance with community corrections and the seriousness of acquiring new felony charges while on probation, the trial court reasonably concluded that a partial revocation was appropriate.

[18] The trial court imposed only 270 days of Day's 365-day suspended sentence and made her eligible for home detention. This measured response demonstrates the court's consideration of Day's circumstances—including her steady employment and shared custody of her 14-year-old daughter—while appropriately addressing her violation and poor compliance history. We therefore find no abuse of the trial court's discretion in selecting this sanction.

Conclusion

[19] As the State presented sufficient evidence that Day violated her probation by being charged with a new criminal offense based on probable cause and the sanction was not an abuse of discretion, we affirm the trial court's judgment.

Weissmann, Judge.

Judges Bailey and Brown concur. Bailey, J., and Brown, J., concur.