Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: JILL M. ACKLIN Acklin Law Office, LLC Westfield, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KIMBERLY HEATON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

FILED
Dec 28 2011, 9:26 am
of the supreme court, court of appeals and tax court

CLERK

No. 48A02-1104-CR-404

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0904-FC-61

December 28, 2011 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary Kimberly Heaton appeals the revocation of her probation and the trial court' s order that she serve eighteen months of her previously-suspended sentence in the Indiana Department of Correction. She contends that the trial court abused its discretion in imposing the eighteen-month sentence by both using the incorrect legal standard to determine if she had committed another offense and by using rules that were vague as to what constitutes a change of address. We hold that the terms of probation regarding Heaton's address were not vague, but that the trial court did abuse its discretion by using the incorrect legal standard in determining if Heaton committed another offense. We therefore reverse and remand to the trial court to use the correct legal standard to determine whether Heaton violated her probation by committing a new offense and resentence her in light of the new findings. Facts and Procedural History On August 3, 3009, Heaton pled guilty to Class D felony receiving stolen property. In September 2009, the trial court sentenced Heaton to thirty months, with six months executed and twenty-four months suspended to probation. Appellant's App. p. 18. As part of her probation, Heaton was required, among other things, to keep the Probation Department informed of her address, obtain a substance-abuse evaluation, and find and maintain employment of twenty-five hours per week. Id. It is undisputed that Heaton obtained a substance-abuse evaluation and employment, but she did not inform her probation officer of the completion of those terms in a timely manner. Id. at 63-66. 2

It is also undisputed that Heaton registered her address with her probation officer as 414 Wheeler Avenue but moved to 527 Ellenhurst for one week without informing her probation officer. Id. at 69-70. In October 2010, Heaton also went to the home of Rhonda White and allegedly took over $500 worth of clothes and jewelry without permission. Heaton was arrested and charged with Class D felony theft. The State filed a petition to revoke Heaton's probation. An evidentiary hearing was held on March 8, 2011, and Heaton was unable to attend due to complications with her pregnancy. Tr. p. 13. The trial court kept the record open, and Heaton testified one week later. After hearing the evidence, the trial court found Heaton to be in violation of four terms of her probation: (1) committing another offense, (2) failing to keep the Probation Department informed of her address, (3) failing to obtain a substance-abuse evaluation, and (4) failing to verify her employment with the Probation Department. Appellant's App. p. 23. The trial court ordered Heaton to execute eighteen months of her previouslysuspended sentence at the Indiana Department of Correction. Id. at 35. Heaton now appeals. Discussion and Decision Heaton contends that the trial court abused its discretion in finding that she violated her probation by committing a new offense and failing to inform her probation officer of her current address. She does not argue that the court erroneously found that she failed to verify her employment and failed to obtain a substance-abuse evaluation. She argues that the trial court used the wrong legal standard of "probable cause" as 3

opposed to "preponderance of the evidence" in finding that she committed a new offense, and that the terms of her probation were vague about informing her probation officer of her current address. We disagree with the assertion that the terms of probation regarding her address were vague.1 We do agree, however, that the trial court erred in using the probable-cause standard in determining if Heaton committed the theft. Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). During the first step, the court must make a factual determination that a violation of a condition of probation has occurred. Id. To obtain a revocation of probation, "[t]he [S]tate must prove the violation by a preponderance of the evidence." Ind. Code

Download Kimberly Heaton v. State of Indiana.pdf

Indiana Law