Hubbard v. State
| Decision Date | 16 July 1997 |
| Docket Number | No. 85A02-9601-CR-33,85A02-9601-CR-33 |
| Parties | Leroy HUBBARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Leroy Hubbard appeals from the revocation of his probation 1 and raises the following issues:
I. Whether the trial court violated due process requirements in failing to set forth in writing the facts and reasons for revoking probation;
II. Whether the trial court violated due process requirements in basing the probation revocation on an alleged violation of which Hubbard received no notice; and
III. Whether the evidence was sufficient to support the trial court's revocation of Hubbard's probation.
We affirm.
In 1980, Hubbard was convicted by a jury of battery, as a Class C felony, and of being a habitual offender. He was sentenced to eight years on the battery conviction, enhanced by an additional thirty years for habitual offender status. In June, 1994, Hubbard's Motion for Modification of Sentence was granted, and the trial court suspended the remaining ten years of the habitual offender sentence and placed Hubbard on probation for five years.
On September 7, 1995 Wabash City police officers George Ryan Short and David Owen were called to investigate a report that Hubbard was involved in a fight and in violation of a protective order. When the officers approached him, they found that Hubbard's face was swollen and bruised, that his eyes were bloodshot, and that he smelled strongly of alcoholic beverages. Officer Short asked him if he had been drinking. Hubbard did not respond. When the officers attempted to test Hubbard with an Alco-Sensor, Hubbard became argumentative and refused twice, saying that he was not "taking the f------ test." Record at 53. Hubbard pushed Officer Owen and, in a loud voice, threatened that he "could take him out." Record at 53. Feeling that the situation was getting out of control, Officer Short arrested Hubbard for operating a vehicle while intoxicated, public intoxication, and intimidation of a law enforcement officer.
The State filed a petition to revoke Hubbard's probation. In its Petition, the State alleged that Hubbard had violated "term 6, 8 and 13 of his terms of probation." Record at 14. Number 6 of these terms provided:
Record at 9-10. Number 8 provided:
"You shall not violate any law of the State of Indiana or any other jurisdiction during the term of your probation."
Record at 10. Number 13 provided:
Record at 10. Following an evidentiary hearing, the trial court ordered revocation of Hubbard's probation, and Hubbard now appeals.
STANDARD OF REVIEW
Probation is a conditional liberty that is a privilege, not a right. Perry v. State, 642 N.E.2d 536, 538 (Ind.Ct.App.1994). Revocation of an individual's probation deprives the individual "not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." Dulin v. State, 169 Ind.App. 211, 215, 346 N.E.2d 746, 749 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). The decision on whether to revoke probation is a matter addressed to the sole discretion of the trial judge. Johnson v. State, 606 N.E.2d 881, 882 (Ind.Ct.App.1993).
We will affirm revocation if, considering only the probative evidence and reasonable inferences therefrom, there is sufficient evidence supporting the conclusion that the probationer is guilty of violating any condition of his probation. IC 35-38-2-3; Menifee v. State, 600 N.E.2d 967, 970 (Ind.Ct.App.1992). We will neither weigh the evidence nor assess witness credibility. Id.
DISCUSSION
Hubbard first contends that the trial court violated due process requirements by failing to set forth in writing the facts and reasons for revoking his probation. Pursuant to IC 35-38-2-3(a), "[t]he court may revoke an individual's probation if: (1) The person has violated a condition of probation during the probationary period...." The State must prove the violation of a probation condition by a preponderance of the evidence. IC 35-38-2-3; Menifee, 600 N.E.2d at 970. Due process requires a written statement by the fact finder regarding the evidence relied upon and the reasons for revoking probation. Offringa v. State, 637 N.E.2d 190, 190-91 (Ind.Ct.App.1994). This requirement is a procedural device 2 aimed at promoting accurate fact finding and ensuring the accurate review of revocation decisions. Clark v. State, 580 N.E.2d 708, 710-11 (Ind.Ct.App.1991). We have held that placing the transcript of the evidentiary hearing in the record, although not the preferred way of fulfilling the writing requirement, is sufficient if it contains a clear statement of the trial court's reasons for revoking probation. Id. at 711-12 n. 3.
Here, the reasons for revoking probation were properly set out in the trial court's Order of Revocation of Probation, which stated:
Record at 18. Although the trial court did not issue a separate writing, the evidence it relied upon in revoking Hubbard's probation is contained in the transcript of the trial court's evidentiary hearing. The evidence therein shows that Hubbard was fired for failing to appear at his job for two days without notifying his employer of the reason and that Hubbard did not notify his probation officer within twenty-four hours of his termination. This evidence supports the trial court's determination that Hubbard "[failed] to maintain employment and report loss of employment to the probation office" in violation of condition No. 6 which states:
The transcript also contains evidence that the officers found Hubbard with bloodshot eyes and smelling strongly of alcoholic beverages, that Hubbard refused to answer Officer Short's question as to whether he had been drinking, that he refused to take an alcohol test, and that he became agitated, belligerent, and aggressive when requested to do so. This evidence supports the trial court's determination that Hubbard "[used] an alcoholic beverage" in violation of condition No. 13 which states:
The trial court's Order of Revocation provides the reasons for, and the hearing transcript provides the evidence underlying, the trial court's revocation of Hubbard's probation. Both documents provide an adequate basis for appellate review and, thus, are adequate to satisfy the separate writing requirement.
Hubbard next contends that his probation may not be revoked for his refusal to take an alcohol test because he received no notice that this act was a violation of his probation. We agree.
It is well settled that although a probationer is not entitled to the full array of rights afforded at trial, certain due process rights inure to a probationer at a revocation hearing. State v. Cass, 635 N.E.2d 225, 226 (Ind.Ct.App.1994), trans. denied. Those rights include written notice to the probationer of the claimed violations. Isaac v. State, 605 N.E.2d 144, 147-48 (Ind.1992), cert....
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