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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.

FILED
Mar 31 2010, 8:40 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ROY GRAHAM Bloomington, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEITH J. FLYNN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No.55A04-0909-CR-514

APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable Jane Spencer Craney, Judge Cause No. 55D03-9707-CF-197

March 31, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Keith J. Flynn appeals the trial court's revocation of his probation. The sole restated issue presented for our review is whether the State provided Flynn with sufficient notice of the claimed violations of his probation to satisfy due process. We affirm. Facts and Procedural History On August 27, 1998, Flynn pleaded guilty to one count of class B felony sexual misconduct with a minor and one count of class D felony dealing in marijuana to a juvenile. Pursuant to the plea agreement, the trial court sentenced Flynn to twenty years for the class B felony and three years for the class D felony, to be served consecutively. The trial court ordered that eight years of Flynn's sentence be suspended and served on probation.1 On April 10, 2008, Flynn was released from incarceration and began to serve his probation.2 On April 21, 2009, the State filed a notice of probation violation. The notice stated that Flynn "is alleged to have had contact with juveniles and failed to cooperate with probation officer by denying these contacts." Appellant's App. at 122. Following an evidentiary hearing on July 15, 2009, the trial court found that Flynn had violated his

The plea agreement here was tendered in conjunction with a plea agreement on related charges filed in the Monroe Circuit Court. In that cause, Flynn pleaded guilty to two counts of class B felony sexual misconduct with a minor. The Monroe Circuit Court sentenced Flynn to twenty years on each count, with twelve years suspended on the first count and thirteen years suspended on the second count, to be served consecutively and also consecutive to the Morgan County sentences. Upon Flynn's release from incarceration, the Monroe County Probation Department supervised Flynn's probation.
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probation. The trial court revoked Flynn's probation and sentenced Flynn to four years incarceration. This appeal ensued. Discussion and Decision Flynn appeals the revocation of his probation. On appeal from the revocation of probation, we consider only the evidence most favorable to the judgment, and we will not reweigh the evidence or judge the credibility of the witnesses. Vernon v. State, 903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans. denied. Probation is a favor granted by the State, not a right to which a defendant is entitled. Id. However, once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id. Probation revocation implicates a defendant's liberty interest, which entitles the defendant to some procedural due process. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997) (citing Morrisey v. Brewer, 408 U.S. 471 (1972)) (some citations omitted). Because probation revocation does not deprive a defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the full due process rights afforded a defendant in a criminal proceeding. Id. The minimum requirements of due process include: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. Id. (citing Morrisey, 408 U.S. at 489).

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Probation revocation is a two-step process. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. First, the trial court must make a factual determination that a violation of a condition of probation actually has occurred. Id. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation. Id. Indiana has codified the due process requirements at Indiana Code

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