MEHLING v. STATE (2021)

MEMORANDUM DECISION

Case Summary

[1] The trial court determined that Leon Mehling violated his probation by committing a new criminal offense and revoked his suspended sentence. Mehling argues that the arrest associated with the new criminal offense was illegal and, therefore, his probation should not have been revoked.

[2] We affirm.

Facts & Procedural History

[3] On November 14, 2019, the State charged Mehling with Level 5 felony operating a motor vehicle after forfeiture of license for life. On May 22, 2020, he entered into a plea agreement that provided for a sentence of three years in the Indiana Department of Correction (DOC), with the first year to be served on home detention and the remaining two years suspended to supervised probation. The sentence was to run consecutive to sentences in three other causes. The plea agreement further provided:

Defendant agrees that if [he] violates any term of his sentence, including, but not limited to any violation of Community Corrections and/or probation and/or failed alcohol/drug screen, Defendant shall be required to serve his full underlying sentence at the [DOC], with credit for any time previously served.

Appellant's Appendix Vol. 2 at 37 (emphasis in original).

[4] On July 15, 2020, the trial court issued a Sentencing and Probation Order that sentenced Mehling in accordance with the terms of the plea agreement and outlined various probationary conditions, including: “Defendant shall not commit a criminal offense that can be proved by a preponderance of the evidence and shall notify the probation department within 24 hours of any such event.” Id. at 62. Mehling signed an advisement form in which he acknowledged reading and understanding the probationary conditions. On August 20, 2020, Mehling began serving his sentence on home detention with GPS monitoring.

[5] On the afternoon of September 1, 2020, Officer Rusty Drew of the Huntingburg Police Department (HPD) and Deputy John Anderson of the Dubois County Sheriff's Office assisted the Dubois County Community Corrections Department with a home search of Mehling's residence. While there, they learned Mehling was a habitual traffic violator.

[6] The next day, Officer Drew and Deputy Anderson, neither in uniform, were riding together in Deputy Anderson's unmarked patrol vehicle. As Deputy Anderson passed another vehicle, he observed that the driver of the car appeared to be Mehling and mentioned this to Officer Drew. Deputy Anderson changed lanes to position himself in front of the car and then moved to the shoulder to allow the vehicle to pass, and as it did so, both officers observed Mehling driving the car. Deputy Anderson radioed for Officer Kramer, the Captain of HPD, to come to their location to conduct a traffic stop of Mehling. Before he arrived, however, Mehling pulled into a parking lot, exited his vehicle, and began walking away.

[7] The officers followed Mehling into the lot, and Officer Drew exited the patrol vehicle, identifying himself as an officer and instructing Mehling to stop, but Mehling continued to walk away. Officer Drew then caught up to Mehling on foot, placed him in handcuffs, and informed Mehling that he was being detained for operating a motor vehicle with a lifetime suspension. Officer Kramer and another officer arrived at the scene, Mehling was placed under arrest, and Officer Kramer transported him to HPD.

[8] On September 2, the State charged Mehling under cause number 19D01-2009-F5-777 (Cause 777) with Level 5 felony operating a motor vehicle after forfeiture of license for life. Based on the new offense charged in Cause 777, the State filed a Petition to Revoke Home Detention with GPS Monitoring on September 3 and a Petition to Revoke Probation on October 6.

[9] On November 17, 2020, the trial court held a hearing on the petitions to revoke. At the hearing, Deputy Anderson testified that, as he passed Mehling's car, he looked directly at Mehling, who the deputy knew not only from the prior day's home search but also from other interactions. Officer Drew testified that he was a passenger in Deputy Anderson's vehicle, a pickup truck, and described that, after Deputy Anderson pulled to the shoulder, he observed Mehling driving a car that passed them. The probation officer assigned to Mehling's case also testified, stating that, after his arrest for a new offense in Cause 777, she requested that a petition to revoke be filed.

[10] Mehling testified to his belief that the new arrest was unlawful under Ind. Code § 9-30-2-2 ¹ because “at the time Drew arrested me, neither Drew nor the driver, who was detective John Anderson[,] were wearing distinctive officer uniforms nor was the pickup truck clearly marked so that that a casual observer would recognize it as a police vehicle.” Transcript at 23. Mehling also testified to his belief that the filing of criminal charges does not warrant revocation. Mehling urged the court to dismiss the petitions to revoke and asked the court to give him another chance at community corrections.

[11] In closing argument, the State asserted that it had met its burden, noting that the CCS for Cause 777, which was admitted into evidence at the revocation hearing, “clearly indicates that Mr. Mehling has been arrested and charged for the new offense.” Id. at 26. The court, in closing remarks, referred to the sentencing order “that specifically states that you shall not commit a criminal offense that can be proved by a preponderance of the evidence.” Id. at 27. The court continued:

I understand your argument here [to be] that because these officers were not in uniform and were not in a marked car, that their arrest of you was unlawful. That's an issue for your new case [Cause 777]. It really doesn't have any relevance to this revocation matter because they don't have to arrest you, they don't have to charge you, all they have to do is prove that you committed a criminal offense by a preponderance of the evidence. And I believe based upon the testimony that's been provided here today that they have, in fact, proved by a preponderance of the evidence that you committed the offense of operating a vehicle as a habitual traffic violator. Both officers identified you as the person driving the vehicle and there was no testimony that contradicted that.

Id. at 27-28.

[12] That same day, the court issued a Sentencing Order Revoking Home Detention with GPS Monitoring and Probation. The order found that the State had proven by a preponderance of the evidence “that [Mehling] did, in fact, commit an offense” and thereby violated the terms of his home detention and probation. Appellant's Appendix Vol. 2 at 29. The court revoked Mehling's suspended sentence and sentenced him to three years at the DOC, less credit time. In December 2020, Mehling filed a motion to correct error, alleging that the evidence was not sufficient to revoke his home detention and probation, which motion the court denied the same day. Mehling now appeals.

Discussion & Decision

[13] “Probation is a matter of grace left to the trial court's discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the trial court to determine probation conditions and to revoke probation if those conditions are violated. Id. We review the appeal from a trial court's probation determination and sanction for an abuse of discretion. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). A probation hearing is civil in nature and the State need only prove the alleged violation by a preponderance of the evidence. Id. The reviewing court considers only the evidence most favorable to the trial court's judgment without reweighing the evidence or judging the credibility of witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). If there is substantial evidence of probative value to support the trial court's decision that a defendant has violated any terms of probation, we will affirm. Id.

[14] Mehling's argument “is not that he is not guilty” but, rather, is that his arrest ² in Cause 777 was illegal under I.C. § 9-30-2-2 and “ideally” we would find that charge to be void. Appellant's Brief at 8-9, 15. He acknowledges, however, that “the standard, accepted remedy” for an illegal arrest “is evidence suppression.” Id. at 9. Therefore, he contends that the “only effective remedy” for the claimed illegal police conduct “is to bar [the officers’] testimony” in this revocation case. Id. His argument is misguided.

[15] The Sentencing and Probation Order issued on July 15, 2020, instructed Mehling that he was subject to various conditions, including that he “not commit a criminal offense[.]” Appellant's Appendix Vol. 2 at 62. I.C. § 9-30-10-17(a)(1) states that a person who operates a motor vehicle after the person's driving privileges are forfeited for life commits a Level 5 felony. Here, Deputy Anderson and Officer Drew each testified to observing Mehling driving on September 2, 2020 and to having knowledge that Mehling did not possess driving privileges.

[16] While Mehling argues that the officers’ testimony in that regard should have been excluded, he did not object as each officer testified about observing Mehling driving on September 2, 2020. Thus, Mehling's claim that their testimony should have been excluded is waived. Kyle v. State, 54 N.E.3d 439, 443 (Ind. Ct. App. 2016) (failure to object to admission of evidence waives error for appellate review). Furthermore, Mehling has not explained on what basis their testimony should have been excluded. That is, his illegal-arrest theory does not support his exclusion argument because the relevant testimony concerned what the officers observed before the arrest. As the State observes, “[w]hether his arrest was valid, constitutional, or outside of the officer's statutory authority had no bearing on the ultimate question at issue in his [revocation] evidentiary hearing—whether he had committed a new criminal offense while under the court's supervision.”³ Appellee's Brief at 15.

[17] Here, the evidence established by a preponderance of the evidence that Mehling committed a new offense on September 2, 2020. Accordingly, the trial court did not abuse its discretion when it determined that Mehling violated his probation and revoked his suspended sentence.

[18] Judgment affirmed.

FOOTNOTES

1.   I.C. 9-30-2-2(a) states: “[A] law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on a highway unless at the time of the arrest the arresting officer is: (1) wearing a distinctive uniform and a badge of authority; or (2) operating a motor vehicle that is clearly marked as a police vehicle; that will clearly show the officer or the officer's vehicle to casual observations to be an officer or a police vehicle.”

2.   Mehling acknowledges that the police did not stop him and, rather, he “voluntarily stopped in the parking lot.” Appellant's Brief at 14. He also recognizes that Officer Drew “detained” Mehling until Officer Kramer arrived, but nevertheless suggests that “clearly Mehling's ‘detention’ constituted a de facto arrest.” Id. at 13. We make no express determination regarding whether the detention constituted an arrest, but even assuming it did, we find no error in the trial court's revocation of probation as explained in this decision.

3.   To the extent that Mehling asks us to find the charge in Cause 777 void due to the allegedly-illegal arrest and to dismiss it, his request is improper. This appeal is a challenge to the trial court's order that revoked home detention and probation and sentenced him. We have no authority to rule in a case that is not before us.

Altice, Judge.

Kirsch, J. and Weissmann, J., concur.