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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.

ATTORNEY FOR APPELLANT: JACK QUIRK Public Defender Muncie, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Sep 14 2011, 9:41 am

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER R. PERRY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 18A02-1104-CR-364

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Thomas A. Cannon, Jr., Judge Cause No. 18C05-1012-FB-26

September 14, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Christopher R. Perry appeals the revocation of his probation. The sole restated issue presented for our review is whether the trial court abused its discretion when it revoked Perry's probation. Finding no abuse of discretion, we affirm. Facts and Procedural History On January 13, 2009, Perry pled guilty to class C felony battery pursuant to a written plea agreement. The trial court sentenced Perry to an eight-year term, with six years executed and two years suspended to probation. Perry was released to probation on April 21, 2010. On July 14, 2010, the State filed a petition alleging that Perry had violated the terms of his probation. The petition alleged that Perry had been arrested for and charged with class D felony residential entry, class D felony theft, and class A misdemeanor battery resulting in bodily injury. Shortly thereafter, Perry pled guilty to the class D felony residential entry charge. A probation violation hearing was held on February 22, 2011. During the hearing, Perry admitted that his commission of a new crime constituted a violation of his probation. Accordingly, the trial court found that Perry had violated his probation and, on April 4, 2011, ordered Perry to serve the previously suspended two-year sentence. This appeal followed. Discussion and Decision Perry appeals the trial court's revocation of his probation. As an initial matter, we note that probation is a matter of grace left to the trial court's discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial

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court determines the conditions of probation and may revoke probation if the conditions are violated. Id. Because a probation revocation hearing is civil in nature, an alleged violation need only be proven by a preponderance of the evidence. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). On appeal, we do not reweigh the evidence or judge the credibility of witnesses, and we look only to the evidence that supports the judgment and any reasonable inferences flowing therefrom. Baxter v. State, 774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002), trans. denied. We review a trial court's decision in a probation revocation proceeding for an abuse of discretion. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court. Prewitt, 878 N.E.2d at 188. Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Terrell v. State, 886 N.E.2d 98, 103 (Ind. Ct. App. 2008), trans. denied. If a violation is proven, the trial court must then determine if the violation warrants revocation of the probation. Id. at 10405. When a probationer admits to a violation, an evidentiary hearing is not necessary. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). Instead, the trial court can proceed to the second step and determine whether the violation warrants revocation. Id. The trial court here based its revocation of probation on Perry's admission that he violated the terms of his probation when he committed and pled guilty to a new crime, class D felony residential entry. Perry's only argument on appeal is that the trial court abused its

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discretion when it revoked his probation based upon the admission because Perry gave what he characterizes as an "incomplete answer" regarding the admission of his violation.1 Appellant's Br. at 6. Specifically, Perry directs us to the conclusion of the revocation hearing when he was asked if he admitted or denied the probation violation, and he answered, "Exactly that." Tr. at 4. However, by directing us only to that one response, Perry misrepresents the record. At the outset of the hearing, Perry's counsel informed the court that Perry was admitting the violation. When asked by the court, "Is that correct Mr. [Perry]?" Perry responded, "Yes sir." Id. at 1. Then, when asked by his attorney if he violated the terms of his probation by committing and pleading guilty to class D felony residential entry, Perry responded, "Yes." Id. at 4. Thereafter, when asked whether anyone was forcing him to admit his violation, Perry responded, "No sir." Id. On appeal, Perry cannot simply ignore the record and claim, based upon one ambiguous response, that he did not expressly admit the violation. We find his argument disingenuous. The trial court properly accepted Perry's admission as the factual basis for the violation and proceeded to determine that such violation warranted revocation of Perry's probation. Perry has shown no abuse of discretion. Finally, in a not-so-cogent manner, Perry suggests that his counsel rendered

Generally, the sole avenue for a defendant who has admitted or pled guilty to a probation violation is to challenge a revocation of probation through a post-conviction relief petition. Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005). However, because Perry challenges the validity of his admission, we choose to address the issue rather than sua sponte dismiss the appeal.

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ineffective assistance by informing the court at the outset of the revocation hearing that Perry would be admitting the probation violation. However, as with his earlier argument, Perry's argument on this point is based upon an assumption that he never actually admitted his violation. As noted above, Perry repeatedly admitted that he violated his probation during the hearing. We fail to see how counsel could have been ineffective for informing the court as to his client's intentions.2 Affirmed. BAILEY, J., and MATHIAS, J., concur.

Perry directs us to a colloquy between himself and his counsel that occurred at a subsequent hearing, during what appears to be a recorded sidebar, which he claims demonstrates that "there was obvious animosity" between attorney and client. Appellant's Br. at 1; Tr. at 13-14. Regardless, Perry does not adequately explain how this alleged animosity resulted in ineffective representation.

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