Brabandt v. State
| Decision Date | 27 October 2003 |
| Docket Number | No. 22A01-0302-CR-64.,22A01-0302-CR-64. |
| Citation | 797 N.E.2d 855 |
| Parties | Ronald E. BRABANDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
J. Patrick Biggs, Chief Public Defender, New Albany, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Ronald E. Brabandt appeals the revocation of his probation and imposition of his suspended sentence, raising the following two issues:
I. Whether the failure of a probation officer to administer Miranda warnings prior to a probationer's admission of illegal drug use should exclude such admission from entry into evidence at the probationer's probation revocation hearing.
II. Whether Brabandt's confession was involuntary under the Fourteenth Amendment and Fifth Amendment to the United States Constitution such that its introduction at the probation revocation hearing constituted fundamental error.
We affirm.
On April 3, 2001, Brabandt was charged with invasion of privacy, resisting law enforcement, criminal mischief, and two counts of battery resulting in bodily injury, as Class D felonies.2 In exchange for Brabandt's guilty plea on the two battery counts, the State dropped the other three charges. The trial court sentenced Brabandt to one and one-half years on each battery conviction to be served consecutively. After giving him credit for time served, the trial court suspended the remaining two years and ten months of his sentence and placed him on probation.
Brabandt's Order of Probation required him to pay court costs and probationer's user fees and contained the following pertinent conditions:
1. Good behavior.
2. You shall make an appointment with the Probation Officer of this Court within 7 days from the sentence or release date. Thereafter, you shall report to him/her as he/she shall direct.
13. You shall not use alcohol or drugs (controlled substances) unless prescribed by a physician.
. . . .
15. Urinalysis testing for drugs and alcohol at random intervals for term of probation. . . .
. . . .
17. Special Conditions: Take medication as prescribed by physician and Anger/Stress Management.
Revocation Hearing, State's Exhibit 1.
On November 19, 2001, the State filed its first Notice of Probation Violation in the Floyd Superior Court alleging that Brabandt violated his probation by: (1) failing to report to his probation officer as directed under term # 2; (2) failing to notify his probation officer of a change in address and telephone number under term # 5; and (3) failing to pay both court costs and probationer's user fees. Appellant's Appendix at 7. The State learned that Brabandt failed to comply with these terms because he was in the Harrison County Jail.3 On April 24, 2002, the State and Brabandt agreed to resolve the probation violation by extending his probation for five additional months and by requiring Brabandt to complete alcohol and drug recommendations, complete an anger management course, and make an appointment to see his probation officer within seven days. Appellant's Appendix at 13.
Thereafter, Collins received information from two sources that implicated Brabandt in illegal drug use. Collins confronted Brabandt with these drug-use allegations during Brabandt's October 10, 2002 probation appointment. During the same meeting, Collins performed a drug test on Brabandt, inspected his arms, and noted fresh needle marks. Appellant's Appendix at 35-36.
At the January 22, 2003 probation revocation hearing, Collins testified that, although Brabandt passed the drug test, he voluntarily signed an affidavit admitting to violating his probation ("Affidavit") by using Oxycontin on October 7, 2002, and further admitting to the use of alcohol. Appellant's Appendix at 36; Revocation Hearing, State's Exhibit 2. He also placed his initials on the Affidavit next to the statement, "I am making this statement of my own free and voluntary will." Revocation Hearing, State's Exhibit 2.
Brabandt testified that, although he took the drug test, he was not immediately told that he passed the test. Instead, by inspecting his arms and asking about drug use, Collins led him to believe that he had not passed the test. Appellant's Appendix at 57-58. Brabandt further testified that he was coerced to sign the Affidavit because Collins told him that signing the Affidavit would allow him to get treatment, while not signing would cause him to go to jail.4Appellant's Appendix at 58. Brabandt signed the Affidavit and then left the office.
Sometime later, Brabandt met with Collins to report on his progress in treatment. Brabandt told Collins that he had attended one treatment meeting. Collins found this was insufficient and informed Brabandt that a second Notice of Probation Revocation would be filed. Appellant's Appendix at 59-60. On December 3, 2002, the State filed its second Notice of Probation Violation alleging that Brabandt: (1) failed to "abide by the directive of probation to seek treatment (anger/stress management) and follow their recommendations;" (2) failed to pay delinquent probationer's user fees; (3) failed to pay court costs; and (4) used controlled substances not prescribed by a physician. Appellant's Appendix at 14.
At the conclusion of the January 22, 2003 probation revocation hearing, the trial court revoked Brabandt's probation and reimposed his sentence to be served at the Floyd County Jail. Brabandt now appeals.
Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment. Bonner v. State, 776 N.E.2d 1244, 1247 (Ind.Ct.App. 2002), trans. denied (2003) (citing Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct. App.1999)). These restrictions are designed to ensure that the probation serves as a period of genuine rehabilitation and that the public is not harmed by a probationer living within the community. Id.
A defendant is not entitled to serve a sentence in a probation program; rather, such placement is a "matter of grace" and a "conditional liberty that is a favor, not a right." Cox v. State, 706 N.E.2d 547, 549 (Ind.1999); Davis v. State, 743 N.E.2d 793, 794 (Ind.Ct.App.2001), trans. denied. Therefore, upon finding that a probationer has violated a condition of probation, a court may either continue probation, with or without modifying or enlarging the conditions, extend probation for not more than one year beyond the original probationary period, or order execution of the initial sentence that was suspended. IC XX-XX-X-X(g).
A probation revocation hearing must be a narrow inquiry with flexible procedures that allow a court to exercise its "inherent power to enforce obedience to its lawful orders." Cox, 706 N.E.2d at 550. The decision whether to revoke probation is a matter within the sound discretion of the trial court. Dawson v. State, 751 N.E.2d 812, 814 (Ind.Ct.App.2001). A probation revocation hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence. Cox, 706 N.E.2d at 551 (citing Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)); McKnight v. State, 787 N.E.2d 888, 893 (Ind.Ct.App.2003). Generally, "violation of a single condition of probation is sufficient to revoke probation." Pitman v. State, 749 N.E.2d 557, 559 (Ind.Ct.App. 2001),trans. denied.
On review, our court considers only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of witnesses. Packer v. State, 777 N.E.2d 733, 740 (Ind.Ct.App.2002); Piper v. State, 770 N.E.2d 880, 882 (Ind.Ct.App.2002), trans. denied. If there is substantial evidence of probative value to support the trial court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Cox, 706 N.E.2d at 551; Packer, 777 N.E.2d at 740; Piper, 770 N.E.2d at 882.
At the probation revocation hearing, Brabandt's Affidavit was admitted into evidence without objection. Generally, failure to object, and thus properly preserve an issue for appeal, results in waiver. England v. State, 670 N.E.2d 104, 105 (Ind.Ct.App.1996), trans. denied (1997) (citing Randolph v. State, 269 Ind. 31, 34, 378 N.E.2d 828, 831 (1978)). Our court nevertheless remedies an unpreserved error when a trial court commits fundamental error. Id. "Fundamental error is error such that, if not rectified, would be a denial of fundamental due process." Bryce v. State, 545 N.E.2d 1094, 1096 (Ind.Ct.App. 1989), trans. denied (1990) (citing Foster v. State, 484 N.E.2d 965, 967 (Ind.1985)). To avoid waiver, Brabandt argues that the trial court committed constitutional error that denied him fundamental due process.
Brabandt first contends that his statement in the Affidavit was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and should not have been admitted into evidence or considered for any purpose at the probation revocation hearing. The State counters that Brabandt was not subjected to a custodial interrogation, and, therefore, the protections of Miranda could not be invoked.
The Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that no person shall be compelled in any criminal case to be a witness against himself. Grubb v. State, 734 N.E.2d 589, 591 (Ind.Ct.App.2000), trans. denied (citing U.S. CONST. amend. V). "In order to protect the privilege against self-incrimination, the United States Supreme Court held in Miranda v....
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