ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL B. TROEMEL KAREN FREEMAN-WILSON
Lafayette, Indiana Attorney General of Indiana
KOSTAS A. POULAKIDAS
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JAMES E. KINCAID, )
vs. ) No. 79A04-0004-CR-142
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-8807-CF-58
OCTOBER 20, 2000
OPINION - FOR PUBLICATION
HOFFMAN, Senior Judge
Appellant-Defendant James E. Kincaid (Defendant) appeals from the trial courts order revoking his
probation from his conviction of burglary, a Class B felony. Defendant pled
guilty to burglary, a Class B felony, on September 16, 1988. The
trial court sentenced him to a term of ten years for the conviction,
but then suspended the sentence and ordered Defendant be placed on supervised probation.
One of the terms of Defendants probation was a prohibition against the
use of illegal drugs.
Defendant was arrested for attempted burglary in Ohio on July 8, 1989.
Defendant pled guilty to that offense and was sentenced to four and a
half years executed on February 23, 1990. Defendants probation in the instant
case was suspended because of the Ohio conviction. On July 11, 1994,
Defendant was paroled on the Ohio conviction, and his Indiana probation was reinstated
and extended for ten years. On July 7, 1997, while on parole
in Ohio, and on probation in Indiana, Defendant tested positive for cocaine use.
The Ohio trial court revoked Defendants parole for testing positive for illegal
drugs and ordered him to serve two years for the violation.
On April 7, 1998, the State filed an amended petition to revoke Defendants
probation alleging that Defendant tested positive for cocaine while on probation. After
Defendant was released from prison in Ohio, he was transported to Indiana on
the petition filed here.
On October 18, 1999, and December 27, 1999, a probation revocation hearing was
held wherein Defendant admitted to cocaine use. The trial court revoked Defendants
probation and ordered him to serve six years in the Department of Correction
followed by four years of supervised probation.
Defendant contends that the trial court abused its discretion by ordering Defendant to
serve six years executed for the probation violation in the instant case.
The petition to revoke Defendants probation alleged that he had used cocaine.
Defendant alleges that because the Ohio parole violation resulted from the same instance
of illegal use of cocaine, the trial court could not further punish Defendant
for that conduct in Indiana. Defendant argues that the trial court violated
Defendants rights under Ind. Const. article I, §14.
The authority to fix a sentence within statutorily prescribed parameters is a discretionary
power vested in the trial court.
Hurst v. State, 717 N.E.2d
883, 886 (Ind. Ct. App. 1999). This sentencing authority includes the statutory
discretion to suspend and to order probation and establish its terms.
Id. Probation is a matter of grace and a conditional liberty that
is a favor, not a right. Id. Ultimately, the decision
whether to grant probation and to determine the conditions of probation are matters
within the sound discretion of the trial court. Id.
The court determines the conditions of probation and may revoke probation if the
conditions are violated. Goonen v. State, 705 N.E.2d 209, 211 (Ind.
Ct. App. 1999). A
revocation hearing is in the nature of a civil proceeding, so the alleged
violation need be proven only by a preponderance of the evidence.
We have held previously that a violation of a condition of probation does
not constitute an offense within the purview of double jeopardy analysis. See
Shumate v. State, 718 N.E.2d 1133, 1134 (Ind. Ct. App. 1999). Double
jeopardy protection applies only to criminal proceedings, and probation revocation proceedings are not
criminal proceedings because violations must be proven only by a preponderance of the
evidence. Id. at 1134-5. Moreover, revocation proceedings are based upon violations
of probation conditions rather than upon the commission of a crime, and the
finding of whether a defendant has complied with these conditions is a question
of fact and not an adjudication of guilt. See id. at 1135.
Therefore, Defendants argument that the probation revocation in Indiana violated Ind. Const.
art I, §14 because Defendant served two years executed in Ohio for the
same conduct is of no avail here.
Further, Defendant seems to make the argument that the trial courts decision to
order that Defendant serve six years executed in the Department of Correction was
excessive in light of the fact that Defendant served two years in Ohio
for a parole violation based on the same conduct. One of the
options available to a trial court when revoking a persons probation is to
order the execution of the sentence that was suspended at the time of
the initial sentencing. See Ind. Code §35-38-2-3(g)(3). In the present case,
a ten-year sentence was suspended and later extended. Since the trial courts
order that Defendant serve time executed was authorized by statute, the trial courts
order was not excessive.
MATTINGLY, J., and KIRSCH, J., concur.
Because Defendant does not assert a violation of his Fifth Amendment protection
against double jeopardy we limit our discussion to the allegation of a violation
of the Indiana Constitution.