Cory L. Simmons, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Cory Simmons appeals the sanction imposed by the trial court when it revoked his probation. Simmons claims that the trial court violated his due process rights and that the sanction was excessive. Finding that Simmons was afforded adequate due process and that the trial court acted within its discretion, we affirm.

Facts and Procedural History

[2] On October 31, 2024, Cory Simmons pleaded guilty to possession of methamphetamine as a Level 6 felony. He was ordered to serve 730 days in the Department of Correction with 710 days suspended to probation.

[3] In April 2025, the State filed a petition for revocation, alleging that Simmons had made no payments on his probation fees and had an outstanding balance of $1,919; that he had failed to report for two drug screens and had failed to call the drug screen line thirty-one times; and that his drug screen in November 2024 was positive for methamphetamine.

[4] The following month, the State filed an amended petition for revocation with the additional allegation that Simmons had failed another drug screen by testing positive for methamphetamine in April. In June, the State filed a second amended petition for revocation and added as a further violation that Simmons had been charged with a new criminal offense.

[5] At the revocation hearing, Simmons admitted to the sole violation of testing positive for methamphetamine in April. He then presented evidence in mitigation, and both parties presented argument regarding the sanction to be imposed. The court imposed the entirety of Simmons’ previously suspended sentence. He now appeals that sanction.

Discussion and Decision

I. Due Process

[6] Simmons first argues that the trial court violated his due process rights when it revoked his probation. Particularly, he claims the court based the revocation on allegations that were neither admitted into evidence nor supported by competent evidence.

[7] Probation revocation implicates a probationer's liberty interest, which entitles him to some procedural due process. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). Because probation revocation does not deprive a probationer of his absolute liberty, but only his conditional liberty, he is not entitled to the full due process rights afforded a defendant in a criminal proceeding. Id. Moreover, when a probationer admits to a violation, the procedural due process safeguards and an evidentiary hearing are not necessary. Id. Instead, the court can proceed to a determination of whether the violation warrants revocation. Id. In making this determination, the probationer must be given the opportunity to offer mitigating evidence in support of continuing probation without revocation. Id.

[8] Here, Simmons admitted to violating his probation based on his positive drug screen for methamphetamine in April. The court accepted his admission and allowed him to present evidence in mitigation before it determined whether the violation warranted revocation. In a discussion between Simmons’ counsel and the court, counsel conceded that the court could, for sentencing purposes, take into account the other claimed violations. See Tr. Vol. 2, p. 12.

[9] The court then concluded that Simmons violated his probation by testing positive for methamphetamine and revoked the entirety of his suspended sentence. The court listed several considerations, including Simmons’ extensive criminal history; the fact that he tested positive for methamphetamine while on probation for a methamphetamine conviction; his new criminal charge while on probation; and his alleged failure to report for drug screens and failure to call the drug screen line. See Appellant's App. Vol. 2, p. 4 (Order on Hearing to Revoke Suspended Sentence).

[10] First, Simmons’ counsel agreed to the court's consideration of other alleged violations for sentencing purposes. Second, resulting error, if any, is harmless. Simmons admitted to violating his probation by failing a drug screen, and proof of a single violation of the conditions of probation is sufficient to support a court's decision to revoke probation. Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021), trans. denied. We conclude that Simmons’ due process rights were not violated. See, e.g., Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct App. 2005) (stating that it was error for trial court to base probation revocation on claimed violations for which defendant had received no notice, but holding that error was harmless because defendant was also found to have violated probation on another basis for which he had received notice), trans. denied; Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997) (finding that defendant received no notice of one of four bases identified by trial court to revoke probation and that it was error for trial court to rely on that basis for revocation, but holding that error was harmless because he had received notice of other three bases).

II. Sanction

[11] Simmons next contends that the trial court abused its discretion by ordering him to serve the entirety of his previously suspended sentence. We disagree.

[12] “ ‘Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.’ ” Clemons v. State, 260 N.E.3d 1010, 1015 (Ind. Ct. App. 2025) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Accordingly, we reverse a trial court's revocation of probation and its resulting sanction for an abuse of discretion, which occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Clemons, 260 N.E.3d at 1015.

[13] Upon finding a probation violation, the trial court may: (1) continue the probation with or without modifying the conditions; (2) extend the probationary period for up to one year; or (3) order all or part of a previously suspended sentence to be executed. Ind. Code § 35-38-2-3(h). To determine whether the sanction issued by the trial court is appropriate, we consider the severity of the violation. Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013). Additional considerations include the defendant's criminal history, his past violations, and his unwillingness or inability to complete ordered programs. Prewitt, 878 N.E.2d at 188.

[14] Here, Simmons began serving his sentence for possession of methamphetamine on October 31, 2024, and within months the probation department filed several notices alleging, among other things, that Simmons had tested positive for methamphetamine in November and been charged with a new offense. At the hearing, Simmons admitted to a subsequent allegation that he tested positive for methamphetamine again in April 2025. In imposing Simmons’ entire suspended sentence for this violation, the court remarked:

Um, and then you test positive for methamphetamine, which is, you're on for methamphetamine, so I can't have much faith that you're not going to continue to use even if you're out of town. It's pretty readily available. Uh, I take into account the new offense. You're not convicted of it, but I read the probable cause affidavit, and you basically admit in that that you did those things. And when I compare that to your history with multiple protection orders, invasion of privacy charges, similar things in the past, it's hard for me to come to any other conclusion than that the probation was not successful and so um, that'll be the finding.

Tr. Vol. 2, pp. 13-14.

[15] In challenging the court's sanction as excessive, Simmons emphasizes that he admitted to committing only a single violation of his probation. Yet, once a trial court has exercised its grace by ordering probation rather than incarceration, the judge has considerable leeway in deciding how to proceed when conditions are violated. Prewitt, 878 N.E.2d at 188. Moreover, as the court pointed out, Simmons’ violation was the same offense for which he was on probation in the first place.

[16] Given the duplicative nature of Simmons’ violation, his apparent unwillingness to alter his behavior, and his extensive criminal history, we cannot say the trial court abused its discretion by revoking Simmons’ entire suspended sentence.

Conclusion

[17] We therefore conclude that Simmons’ due process rights were not violated and that the trial court did not abuse its discretion when it revoked the entirety of Simmons’ previously suspended sentence.

[18] Affirmed.

Crone, Senior Judge.

Mathias, J., and Scheele, J., concur.