Preview:

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. ATTORNEYS FOR APPELLANT: RUTH ANN JOHNSON LILABERDIA BATTIES Marion County Public Defender Indianapolis, Indiana

FILED
Dec 21 2012, 9:09 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY K. MCCULLOUGH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-1110-CR-955

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Stanley Kroh, Judge Pro Tempore Cause No. 49G03-0905-FC-051550

December 21, 2012

MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issue In McCullough v. State, 970 N.E.2d 795 (Ind. Ct. App., July 12, 2012), we considered Anthony McCullough's appeal from the revocation of his probation, in which he raised two issues: whether the evidence was sufficient to revoke his probation and whether the trial court properly calculated his credit for time served. We held that statements made by the trial court at McCullough's revocation and sanctions hearings were inconsistent with ultimately revoking his probation. Accordingly, we reversed the revocation without considering the substance of McCullough's appeal. The State has filed a petition for rehearing, alleging that there is no inconsistency in the trial court's findings and the trial court did not err in revoking McCullough's probation. We grant rehearing and upon further review of the record, agree with the State that although the trial court's statements are confusing, they are not inconsistent, and there was no error in revoking McCullough's probation on that basis. Accordingly, we

consider the two issues raised by McCullough in his brief. Concluding that sufficient evidence supports revocation of McCullough's probation and the trial court did not err in calculating his credit for time served, we affirm the trial court. Facts and Procedural History The facts are set forth in more detail in our original opinion, but we briefly restate the basic facts: in 2010, McCullough pleaded guilty to fraud on a financial institution and was sentenced to eight years, with six years suspended and the remainder to be served on home detention with electronic monitoring. He had both a probation

agreement with the county probation department and an electronic monitoring agreement with Electronic Monitoring Services ("EMS"). Both agreements provided that he would
2

obey all laws.

In August 2011, while still serving his time on home detention,

McCullough was arrested when, during service of a search warrant at his home, marijuana was discovered. That same day, a notice of violation of EMS rules was filed, alleging McCullough had been arrested, that he had failed to provide work hours verification, and that he owed a balance on his home detention fees. Several days later, a notice of probation violation was also filed, alleging McCullough had been arrested and charged with possession of marijuana and had failed to comply with EMS rules. Because what was said at the revocation and sanction hearings and the context in which it was said is important to our resolution, we recount the proceedings in some detail. At the revocation hearing, the State called Willie Barnett, director of operation at EMS, who testified regarding the EMS contract McCullough signed, and also called two Indianapolis Metropolitan Police Department officers who testified regarding the search of McCullough's home. At the conclusion of the State's evidence, the prosecutor made the following motion: [T]he State, for purposes of the probation violation, as well, the State would move to admit or move to incorporate the evidence from the EMS violation into the probation violation if we're technically going forward on both, instead of redoing everything. Transcript at 75. McCullough then called his wife as a witness and testified on his own behalf. At the conclusion of the hearing, the State noted that it "feels that it has met the burden for both violations. Would ask that you find him in violation of not only the electronic monitoring, but the probation." Id. at 124. The trial court observed the EMS notice alleged three violations, but no evidence had been presented from EMS regarding the failure to verify work hours or the balance owed on fees; thus, the possession of
3

marijuana was the "big issue being contested here today." Id. at 134. As for that remaining allegation, the trial court characterized the EMS notice as alleging that McCullough was arrested on or about August 1st of 2011 under Cause Number

Download 12211201mgr.pdf

Indiana Law