Jeffrey Armstrong v. State of Indiana (NFP)
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FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Feb 26 2010, 9:16 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: MICHAEL C. BORSCHEL Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana MELLISICA K. FLIPPEN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA JEFFREY ARMSTRONG, Appellant/Defendant, vs. STATE OF INDIANA, Appellee/Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-0908-CR-751 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven R. Eichholtz, Judge Cause No. 49G23-0709-FA-181675 February 26, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BRADFORD, Judge Appellant/Defendant Jeffrey Armstrong appeals the trial court s revocation of his probation. We affirm. FACTS AND PROCEDURAL HISTORY On March 3, 2008, Armstrong pled guilty to Class A felony dealing in cocaine. Armstrong was sentenced to a term of twenty years, with two years executed, eighteen years suspended, and two years served on probation. Armstrong began serving his probationary term on January 12, 2009. On January 26, 2009, the State filed a Notice of Probation Violation alleging that Armstrong had been arrested and charged with battery. This Notice of Probation Violation was subsequently withdrawn, and Armstrong was continued on probation. On June 11, 2009, the State filed a second Notice of Probation Violation. The second notice of violation alleged that Armstrong committed five separate probation violations, specifically alleging as follows: (1) on May 26, 2009, a probable cause warrant for Armstrong s arrest was issued under cause number 49G16-0905-FD-48857 for Class D felony residential entry, Class D felony strangulation, Class D felony domestic battery, Class D felony battery, Class A misdemeanor domestic battery, and Class A misdemeanor battery; (2) Armstrong failed to report to Probation as directed on May 21, 2009; (3) Armstrong failed to provide Probation with a single verifiable address; (4) Armstrong failed to report to the drug lab for testing on May 19, 2009; and (5) Armstrong failed to call the drug lab hotline on May 27, 2009. Appellant s App. p. 31. The trial court conducted an evidentiary hearing on the second Notice of Probation 2 Violation on July 16, 2009. During this hearing the State presented the testimony of Indianapolis Metropolitan Police Officer Chandra Scherzinger and Marion County Probation Officer Alicia Snow. Armstrong, by counsel, presented the testimony of the alleged victim Ashlee Johnson. At the conclusion of the hearing, the trial court determined that Armstrong had violated the conditions of his probation. The trial court revoked Armstrong s probation and ordered that he serve ten of the originally suspended eighteen years in the Department of Correction. Armstrong now appeals. DISCUSSION AND DECISION When reviewing an appeal from a 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. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. 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. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (quotations omitted). The decision to revoke probation is within the sole discretion of the trial court, and its decision is reviewed on appeal for abuse of that discretion. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Prewitt, 878 N.E.2d at 188. Proof of a single 3 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). On appeal, Armstrong challenges the trial court s order revoking his probation. Armstrong contends that the evidence was insufficient to support the trial court s revocation of his probation because the State failed to prove one of the alleged violations by sufficient substantial evidence. Appellant s Br. p. 3. The State alleged that Armstrong committed five separate probation violations. Armstrong does not dispute the trial court s determination that he committed four of these violations on appeal, specifically that he failed to report to Probation as directed on May 21, 2009, that he failed to provide Probation with a single verifiable address, that he failed to report to the drug lab for testing on May 19, 2009, or that he failed to call the drug lab hotline as directed on May 27, 2009. Armstrong only challenges the trial court s determination that the State s evidence was sufficient to prove that he violated his probation by committing the underlying offense of battery. Again, a violation of a single condition of probation is sufficient to revoke probation. Id. Therefore, because the trial court determined, and Armstrong does not dispute, that Armstrong committed the four above stated probation violations, we conclude that the trial court acted within its discretion in revoking Armstrong s probation, and we need not consider Armstrong s claim that State failed to prove that he violated his probation by committing the underlying battery by sufficient evidence. See Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (providing that the State need not present sufficient evidence supporting every alleged probation violation because revocation is appropriate if the State proves any 4 violation). The judgment of the trial court is affirmed. NAJAM, J., and FRIEDLANDER, J., concur. 5
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