Ewing v. State
| Decision Date | 08 May 1974 |
| Docket Number | No. 2--573A126,2--573A126 |
| Citation | 160 Ind.App. 138,310 N.E.2d 571 |
| Parties | James H. EWING, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Ronald S. Lieber, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
This appeal results from a trial court hearing at which the appellant's probation was revoked.
On April 18, 1972, the appellant (Ewing) was arrested for a violation of the Uniform Narcotic Drug Act, IC 1971, 35--24--1--1 et seq., Ind.Ann.Stat. § 10--3519 et seq. (Burns Supp.1973). Ewing entered a plea of guilty, and, on September 21, 1972, received a sentence of two to ten years imprisonment, and fine and costs of $300.00. The trial judge suspended the sentence 1 and placed Ewing on one year's probation under the following conditions.
'CONDITIONS OF PROBATION
1. You shall not commit another criminal offense, either felony or misdemeanor.
2. You shall report weekly to the Court probation officer.
3. You shall notify the probation office of your new address within twenty-four hours if you change your address from that listed below.
4. You may not remove your residence from Marion County without first obtaining permission from the Court.
5. You must not associate with any person who is likely to influence you to commit any crime.
6. You may not use alcohol unless in a lawful manner and you may not use drugs unless prescribed by a physician.
7. You shall attend school or obtain and keep regular employment.
8. You shall permit the probation officer or any other law officer to enter your home and make reasonable inquiry into your activites while on probation.
9. You agree to waive extradition to the State of Indiana and agree to voluntarily return to this State and appear before the Court when so ordered by the Court.
10. You shall pay the sum of $_ _ per _ _ for _ _ until a total of $_ _ is paid in full as ordered by the Court.
11. You shall pay the sum of $_ _ per week for support of your family through the Clerk of this Court.
12. You shall pay the sum of $_ _ fine and costs within _ _ days from this date. 1
13. _ _
During the period of probation, if it shall appear to the Court that the Defendant has violated any one of the conditions of his probation, or that he has committed another offense whether charged and determined or not, the Court may revoke the suspended sentence and impose an executed sentence.
Following the period of probation and within the maximum period of the original sentence not to exceed five (5) years, if it shall appear to the Court that the defendant has been convicted of committing another offense the Court may revoke the Suspended sentence and impose an executed sentence.'
These conditions were acknowledged by Ewing and his attorney.
Additionally, the court required Ewing's consent to supplementary special conditions applicable only to drug offenders:
'SPECIFIC RULES FOR DRUG RELATED
Sentence Suspended on recommendation of the State of Indiana and upon the request of the defendant. Defendant specifically waives any and all of his rights as to search and seizure, under the laws and constitutions of both the United States and the State of Indiana during his period of probation. Defendant further specifically agree to appear at the offices of the Probation Department of this Court at any time, upon 24 hours notice, to submit to urinalysis.
Defendant is placed on probation for a period of one (1) year upon the following terms and conditions:
1. That he behave well.
2. That he submit to searches of his person and property by any police officer at any time.
3. That he report to the Probation Department of this Court at any time, upon 24 hours notice, to submit to urinalysis.'
Approximately one month later, on October 31, 1972, Ewing was arrested for possession of a narcotic drug. There is no indication of record that Ewing's arrest was related to his probationary status. However, on the following day, Lt. Goden of the Indianapolis Police Department recognized Ewing as a probationer, and notified the probation department. Ewing then submitted to a urinalysis, which, according to a lab report dated November 3, disclosed the presence of morphine. The probation department filed a probation violation report with the trial court.
On November 10, 1972, a probation revocation hearing was conducted before the trial court. The prosecution presented two lab reports showing that a substance in the possession of Ewing at the time of his arrest was heroin, and that he had traces of morphine in his urine several hours after the arrest. It was also adduced at the hearing that Ewing had been arraigned on this subsequent charge but had not proceeded to trial.
After receiving all evidence, the judge stated:
The appellant presents the following issues for consideration:
1. Whether probation can be lawfully revoked on mere evidence that appellant committed a crime absent a conviction thereof.
2. Whether the trial court can impose special probation conditions, supplemental to the general probation conditions, upon persons convicted of drug and drug related offenses.
3. Whether the trial court can impose probation conditions which require an involuntary, future waiver of appellant's constitutional rights against unreasonable search and seizure and self-incrimination.
Appellant contends that the trial court unlawfully revoked probation on mere evidence that appellant committed a crime, and that a conviction for the subsequent offense is a prerequisite t revocation. This contention would meritoriously preponderate, if in fact commission of a subsequent crime was the sole basis for revocation. However, appellant's probation was revoked on dual grounds. We therefore examine both.
Probation should initially be recognized as a statutory sentencing alternative committed to the court's discretion by the legislature. The empowering statute states, in pertinent part and subject to exceptions not here relevant, that a suspended sentence or probation should be granted:
'. . . whenever such court, in the exercise of its judgment and discretion, shall find and determine that such person has committed the offense for which he or she had been convicted under such circumstances as that, in the judgment of such court, such person should not suffer the penalty imposed by the law for such offense if he or she shall thereafter behave well, or whenever such court shall find and determine that by reason of the character of such person, or the facts and circumstances of such case, the interest of society does not demand or require that such person shall suffer the penalty imposed by law if he or she shall thereafter behave well. . . .' I.C. 1971, 35--7--1--1, Ind.Ann.Stat. § 9--2209 (Burns Supp.1973)
Therefore, the courts are at liberty to grant or deny probation subject to the procedures and guidelines promulgated by the legislature or inferred from statutory intendment. State ex rel. Gash v. Morgan County Superior Court (1972), Ind., 283 N.E.2d 349; Farmer v. State (1971), 257 Ind. 511, 275 N.E.2d 783.
A necessary concomitant of the power to grant probation is the power to revoke probation. Revocation unlike the initial grant of probation, is, however, subject to certain limiting circumstances. The legislature, in 1927, promulgated the seminal revocation provisions, and committed revocation power to the court's discretion as follows:
(Emphasis supplied)
IC 1971, 35--7--2--2, Ind.Ann.Stat. § 9--2211 (Burns 1956)
The above revocation statute was materially amended in 1967, and now provides, in similar pertinent part:
At any time within the probation period, the probation officer may arrest the probationer only upon warrant issued by the sentencing court. Thereupon, the probationer may be represented by counsel of his choice. At any time within the maximum period for which the defendant might originally have been committed, but in no case to exceed five (5) years, the court may issue a warrant and cause the defendant t be arrested and brought before the court. It is shall appear that the defendant has violated the terms of his probation or has been found guilty of having committed another offense, the court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed.' (Mephasis supplied)
IC 1971, 35--7--2--2, Ind.Ann.Stat. § 9--2211 (Burns Supp.1973)
It is apparent that the legislature by its 1967 amendment intended to require a criminal conviction prior to revocation of a...
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