Ripps v. State

• Decision Date: 05 June 2012
• Docket Number: No. 15A01–1109–CR–436.,15A01–1109–CR–436.
• Parties: James RIPPS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

968 N.E.2d 323

James RIPPS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 15A01–1109–CR–436.

Court of Appeals of Indiana.

June 5, 2012.

Recognized as Unconstitutional

West's A.I.C. 35–42–4–11(c)Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issue

James Ripps pleaded guilty to child molesting as a Class C felony in March 2009. Ripps was sentenced to eight years, six years and three hundred days of which were suspended to probation. In 2011, the State filed a probation revocation petition, alleging Ripps violated the terms of his probation by residing within one-thousand feet of a youth program center and failing to inform all people living at his residence of his sexual conviction. Ripps admitted the violations and the trial court revoked his probation and ordered him to serve the remaining portion of his sentence in prison. Ripps raises one issue for our review, which we restate as whether the trial court abused its discretion by revoking Ripps's probation and ordering him to serve the entire suspended portion of his sentence for violating terms of his probation. Concluding the trial court did abuse its discretion by revoking Ripps's probation and ordering him to serve the remainder of his sentence in prison, we reverse.

Facts and Procedural History¹

In 2009, Ripps pleaded guilty to child molesting as a Class C felony for molesting his then-four-year-old son in 1997 or 1998. The trial court sentenced Ripps in accordance with the plea agreement to eight years with six years and three hundred days suspended to probation. Included in the terms of Ripps's probation were conditions forbidding him from committing another crime, requiring him to inform all people living at his place of residence of his sex-related conviction, and forbidding him from living within one thousand feet of a youth program center, which is also a criminal offense for sex offenders pursuant to Indiana Code section 35–42–4–11(c).

In June 2009, the State requested Ripps's probation be revoked, alleging Ripps violated a condition of his probation by committing another criminal offense: failure to comply with sex and violent offender registration, a Class D felony. Specifically, Ripps resided within 1,000 feet of a public park and a youth program center, a violation of Indiana Code section 35–42–4–11(c), unconstitutional as applied in State v. Pollard, 908 N.E.2d 1145 (Ind.2009). Although this was also a violation of the condition of Ripps's probation that he not reside within 1,000 feet of school property, a public park, or a youth program center, the State did not allege such violation in its request for probation revocation. Ripps admitted he violated the condition of his probation that he not commit another crime, and the trial court granted the State's petition to revoke Ripps's probation.²

Thereafter, Ripps moved to correct error, contending his conviction for failure to comply with sex offender registration requirements, and the subsequent probation revocation, violated the Indiana and United States Constitutions' prohibitions against ex post facto application of the law because the statute giving rise to such criminal act took effect in July 2006 and his qualifying offense occurred several years prior to that time. The trial court agreed Ripps's conviction for violating the residency restriction enacted in 2006 violated the Indiana Constitution's ex post facto provision and vacated the conviction. Prior to the trial court vacating Ripps's conviction, he served approximately one to one and one-half years in prison.³

Even though Ripps's conviction for violating the residency requirement was vacated, the terms and conditions of his probation included a similar clause. Thus, the State could have requested his probation be revoked for violating that term of his probation rather than for committing another crime. However, because the State's petition to revoke Ripps's probation only claimed he violated his probation by committing a crime, and because the trial court concluded Ripps should not have been convicted for said crime, the trial court concluded the State's petition contained insufficient notice of the alleged probation violation and also vacated Ripps's violation. The trial court specifically noted in its order that “the State could have filed a probation violation for violating conditions of probation that included living within 1,000 feet of a public park and/or a youth center program,” but it did not. Appendix [of] Appellant at 44 (emphasis added). Thus, the trial court ordered Ripps to continue with his prior sentence of probation under the same conditions.

On March 11, 2011, Ripps, who suffers from terminal prostate cancer, congestive heart failure, and obstructive pulmonary disease, moved into Ripley Crossing, an assisted-living facility where he would be able to receive the level of care his medical condition requires. On March 14, 2011, Ripps went to the sheriff's department to register his new address, and a deputy informed Ripps he was living within 1,000 feet of a public library that qualifies as a youth program center. Specifically, Sheriff Gills determined “his apartment” was approximately 980 feet from the public library.⁴ On May 27, 2011, the State filed a verified petition alleging Ripps violated conditions of his probation, and on May 28, 2011, Ripps was arrested. He still resided at Ripley Crossing on the date of his arrest. The trial court held a hearing, and Ripps admitted to the alleged violations. The trial court revoked his probation and ordered him to serve the remaining portion of his suspended sentence, two years and two-hundred and sixty-six days,⁵ in prison. Ripps now appeals. After holding oral argument on May 4, 2012, this court issued an order directing the trial court to order Ripps's release from prison.⁶

Discussion

I. Standard of Review

Probation is a matter of grace and a conditional liberty which is a favor, not a right. The trial court determines the conditions of probation and may revoke probation if those conditions are violated. The decision to revoke probation is within the sound discretion of the trial court. And its decision is reviewed on appeal for abuse of that discretion.

Cooper v. State, 917 N.E.2d 667, 671 (Ind.2009) (citations omitted). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). Further, on appeal “we consider only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of the witnesses. If there is substantial evidence of probative value to support the trial court's decision that a defendant has violated any terms of probation, the reviewing court will affirm its decision to revoke probation.” Woods v. State, 892 N.E.2d 637, 639–40 (Ind.2008) (citation omitted).

II. Ripps's Probation Revocation

“Probation revocation is a two-step process. First, the court must make a factual determination that a violation of a condition of probation actually occurred.... [T]hen, the trial court must determine if the violation warrants revocation of the probation.” Woods, 892 N.E.2d at 640 (Ind.2008) (citing Morrissey v. Brewer, 408 U.S. 471, 479–80, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “However, even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation.” Id. (citing United States v. Holland, 850 F.2d 1048, 1051 (5th Cir.1988) (per curiam)).

Ripps does not contest the first step in our process. He admits that he lived within 1,000 feet of a youth program center and that he failed to inform people living at his place of residence, namely the landlord of Ripley Crossing, of his sex offender status. We thus need not decide whether libraries in general or this library in particular constitute a “youth center” as defined by Indiana Code section 35–41–1–29⁷ or as defined by the terms of Ripps's probation. The answer is less obvious than the State contended during oral argument. Instead, Ripps argues the trial court abused its discretion by revoking his entire suspended sentence because he “admitted he violated his probation,” “did everything in his power to fix the violation once he was made aware of it,” “voluntarily came to the Ripley County Sheriff's office to register his new address,” “was understandably confused as to what he needed to do to comply with probation” due to the 2009 proceeding that hinged on a violation of the Indiana Constitution's ex post facto provision, and chose to live at Ripley Crossing because it was an assisted-living facility and he suffered from several serious health conditions. Brief of Appellant at 6–9. Ripps's caretaker, Sherry Kalfrat, testified Ripps was in the process of moving from Milan, where Ripley Crossing is located, to Sunman, Indiana, when he was arrested, and that she “already had most of his stuff packed and moved.” Tr. at 32.

Our supreme court discussed the abuse of discretion standard in Tapia v. State, 753 N.E.2d 581, 585 (Ind.2001), in which the court assessed a trial court's denial of a motion to continue and a motion to withdraw a petition for post-conviction relief. The court stated:

Our reliance on the abuse of discretion standard invokes some of its well-worn contours. Typically, a fact-finding court is given...