Harrison v. State

ROY L. HARRISON, Appellant-Respondent,

v.STATE OF INDIANA, Appellee-Petitioner.

No. 49A02-1010-CR-1094

COURT OF APPEALS OF INDIANA

Filed: July 6, 2011

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:

SUZY ST. JOHN

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

JODI KATHRYN STEIN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

CRIMINAL DIVISION, ROOM 19

The Honorable Rebekah F. Pierson-Treacy, Judge

Cause No. 49F19-1003-CM-19148

MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Defendant, Roy L. Harrison (Harrison), appeals the trial court's revocation of his probation.

We reverse and remand.

ISSUE

Harrison raises two issues for our review, which we restate as the following single issue: Whether the probable cause affidavit was properly admitted before the trial court.

FACTS AND PROCEDURAL HISTORY

On March 11, 2010, the State filed an Information charging Harrison with Count I, operating a vehicle while intoxicated, a Class A misdemeanor, Ind. Code § 9-30-5-2; Count II, operating a vehicle with a BAC of .15 or more, a Class A misdemeanor, I.C. § 9-30-5-1(b); Count III, public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3; and Count IV, operating a vehicle after never receiving a license, a Class C misdemeanor, I.C. § 9-24-18-1. On April 29, 2010, Harrison entered into a plea agreement with the State, whereby he agreed to plead guilty to Count I, operating a vehicle while intoxicated, in exchange for the dismissal of the remaining charges. That same day, Harrison was sentenced to 365 days in the Marion County Jail, with 353 days suspended to probation.

On June 30, 2010, the State filed a notice of probation violation, alleging that Harrison had been arrested and charged with criminal trespass. During the probation revocation hearing on September 10, 2010, the State sought to admit a probable cause affidavit which stated that on June 21, 2010, Officer Chris McKay (Officer McKay) of the IndianapolisMetropolitan Police Department was dispatched to Valleybrook Mobile Home Park in Indianapolis, Indiana, on the report of a person trespassing. When Officer McKay arrived, he encountered Harrison, who had been placed on a trespass list on May 24, 2010. After confirming with "control" that Harrison was indeed on the trespass list, Officer McKay arrested Harrison and charged him with criminal trespass. (Appellant's App. p. 32). Harrison objected to the admission of this probable cause affidavit based on the fact that the State had not "laid a proper foundation or proffered to the - proffered to the [c]ourt that this probable cause affidavit is reliable based on all the different levels of hearsay." (Transcript p. 9). Without actually admitting the probable cause affidavit, the trial court found as follows:

This probable cause affidavit in this case that was dismissed today is a standard probable cause affidavit. It lists the date that this happened, [and] the officer who was dispatched to the location. So it's from IMPD dispatch to this location on the report of a person trespassing. When the officer arrived, according to this information, the officer saw this defendant and had the list of trespass that is provided by that location, according to [the probable cause affidavit]. And he was on the - the defendant's name was on that list. And so they arrested him for trespassing. This is a very common offense that happens in my court multiple times every week based on this exact kind of information from a probable cause and the officers testify to it.

(Tr. pp. 12-13). The trial court found that Harrison had violated his probation and imposed a ten-day sentence to the Marion County Jail.

Harrison now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Harrison argues that the trial court abused its discretion when it improperly considered the probable cause affidavit, which he claims contained "untrustworthy triple hearsay evidence. . . ." (Appellant's Br. p. 5).

The grant of probation is a favor and not a right to which a criminal defendant is entitled. Smith v. State, 904 N.E.2d 282, 285 (Ind. Ct. App. 2009). However, because probation revocation implicates the defendant's liberty interests, he is entitled to some procedural due process before the State can revoke that favor. Id. In probation revocation proceedings, the minimum requirements of due process include: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of the evidence against him; (c) an opportunity to be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses; and (e) a neutral and detached hearing body. Id. The State must prove the violation by a preponderance of the evidence. I.C. § 35-38-2-3(e).

Here, during the probation revocation hearing, Harrison and the State debated whether the probable cause affidavit should be admitted into evidence. The trial court asked Harrison's probation officer, the only witness to testify, if he had "a certified copy of anything regarding the probable cause affidavit in [the trespass] case?" (Tr. p. 8). The State responded affirmatively and asked to...