Dustin Eugene Harpring v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                               May 30 2018, 8:23 am
    this Memorandum Decision shall not be                                     CLERK
    regarded as precedent or cited before any                             Indiana Supreme Court
    Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Andrew B. Arnett                                        Curtis T. Hill, Jr.
    Indianapolis, Indiana                                   Attorney General of Indiana
    Ian McLean
    Supervising Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Dustin Eugene Harpring,                                 May 30, 2018
    Appellant-Defendant,                                    Court of Appeals Case No.
    73A01-1711-CR-2693
    v.                                              Appeal from the Shelby Circuit Court
    The Honorable Charles D. O’Connor,
    State of Indiana,                                       Judge
    Appellee-Plaintiff                                      Trial Court Cause No.
    73C01-1401-FB-3
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018           Page 1 of 7
    Case Summary
    [1]   Dustin Eugene Harpring appeals the trial court’s revocation of his probation.
    He contends that the trial court abused its discretion. Finding no abuse of
    discretion, we affirm the revocation. However, we remand to the trial court for
    clarification of its sentencing decision.
    Facts and Procedural History
    [2]   On January 9, 2014, the State charged Harpring with class B felony burglary
    and class D felony theft. The State subsequently also alleged that Harpring was
    a habitual offender. Shortly before the scheduled trial date, the parties entered
    into a plea agreement providing for Harpring to plead guilty to both charges in
    exchange for an executed sentence cap of ten years, and dismissal of the
    habitual offender charge. The agreement also provided for Harpring to serve
    his sentence concurrent with the sentence imposed in cause number 73C01-
    1311-FB-78. The trial court accepted the agreement and sentenced Harpring to
    twelve years, with ten years executed and two years suspended to probation.
    The court ordered 180 days of the probationary period to be served on home
    detention. The court stated that it would consider sentence modification if
    Harpring successfully completed a Therapeutic Community program as part of
    Purposeful Incarceration.
    [3]   In March 2016, Harpring filed a motion for sentence modification stating that
    he had successfully completed a Therapeutic Community program. Following
    a modification hearing, the trial court entered a revised sentence. Although the
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 2 of 7
    aggregate sentence remained at twelve years, the court gave Harpring credit for
    1044 days of time already served, and ordered 180 days of his previously
    executed sentence to be served on home detention. The trial court suspended
    the balance of his sentence, or 3156 days, to probation. As the deputy
    prosecutor later put it, Harpring was given “the colossal break of getting
    modified out” of jail. Tr. Vol. 2 at 21.
    [4]   On April 28, 2017, the State filed a petition to revoke Harpring’s probation
    alleging that Harpring had “consumed opiates while on probation as evidenced
    by a positive drug screen.” Appellant’s App. Vol. 2 at 69. During an
    evidentiary hearing held on July 6, 2017, Harpring admitted to the probation
    violation. He stated that he attempted suicide by trying to overdose on heroin
    and that was the reason for his positive drug screen. He requested leniency,
    emphasizing that his overdose attempt was an isolated incident and that all his
    prior drug screens had been negative. The trial court took the punishment
    under advisement, continued the matter, and ordered Harpring to submit to
    another drug screen immediately following the hearing to “see where we are
    with all of this.” Tr. Vol. 2 at 22. Harpring tested positive for
    methamphetamine. On July 18, 2017, the trial court held a dispositional
    hearing, revoked Harpring’s probation, and ordered him to serve the balance of
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 3 of 7
    his previously suspended sentence in the Department of Correction. This
    appeal ensued.1
    Discussion and Decision
    Section 1 – The trial court did not abuse its discretion in
    revoking Harpring’s probation.
    [5]   Harpring contends that the trial court abused its discretion in revoking his
    probation and ordering him to serve the remainder of his previously suspended
    sentence in the Department of Correction. “Probation is a matter of grace left to
    trial court discretion, not a right to which a criminal defendant is entitled.”
    Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). Probation revocation is a two-
    step process. First, the trial court must determine that a violation of a condition
    of probation actually occurred. Woods v. State, 
    892 N.E.2d 637
    , 640 (Ind. 2008).
    Second, the court must determine if the violation warrants revocation of
    probation. 
    Id.
     Where, as here, a probationer admits to the violation, the court
    can proceed to the second step of the inquiry and determine whether the
    violation warrants revocation. 
    Id.
     But even a probationer who admits the
    allegations against him must still be given an opportunity to offer mitigating
    evidence suggesting that the violation does not warrant revocation. 
    Id.
    1
    Harpring has sent numerous pro se documents to the Clerk of the Indiana Appellate Courts. He has been
    informed that those documents have not been filed because he is represented by counsel. See Underwood v.
    State, 
    722 N.E.2d 828
    , 832 (Ind. 2000) (once counsel is appointed, defendant speaks to court through
    counsel).
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018             Page 4 of 7
    [6]   Harpring argues that he was “successfully” completing the terms of his home
    detention and that he had “passed all drug screens” until he submitted a
    positive screen for heroin on April 10, 2017. Appellant’s Br. at 10. He argues
    that the positive screen was the result of a suicide attempt, and that the trial
    court should have considered his mental health issues and prior negative
    screens as mitigating evidence and declined to revoke his probation. However,
    the record reveals that the trial court did consider Harpring’s mitigating
    evidence and even gave him the opportunity to redeem himself by taking the
    admitted violation under advisement and ordering Harpring to complete
    another drug screen. Harpring tested positive for methamphetamine in that
    second drug screen. Under the circumstances, we cannot say that the trial court
    abused its discretion in determining that revocation of Harpring’s probation was
    warranted.
    Section 2 – We remand to the trial court for clarification
    regarding the punishment imposed upon revocation.
    [7]   We next address the punishment imposed by the trial court upon revocation.
    “We review a trial court’s sentencing decision in a probation revocation
    proceeding for an abuse of discretion.” Puckett v. State, 
    956 N.E.2d 1182
    , 1186
    (Ind. Ct. App. 2011) (citing Abernathy v. State, 
    852 N.E.2d 1016
    , 1020 (Ind. Ct.
    App. 2006)). An abuse of discretion occurs if the trial court’s decision is against
    the logic and effect of the facts and circumstances before the court. 
    Id.
     A trial
    court has “considerable leeway in deciding how to proceed” when a defendant
    violates probation. Brandenburg v. State, 
    992 N.E.2d 951
    , 953 (Ind. Ct. App.
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 5 of 7
    2013) (citing Prewitt, 878 N.E.2d at 188), trans. denied. It may (1) continue the
    defendant on probation; (2) extend the probationary period for not more than
    one year beyond the original period; or (3) order all or part of a previously
    suspended sentence to be executed. 
    Ind. Code § 35-38-2-3
    (h).
    [8]   During sentencing, the trial court unambiguously stated that it was revoking
    Harpring’s probation and ordered him to serve “10 years” of his aggregate
    twelve-year sentence. Tr. Vol. 2 at 25. However, the trial court’s written
    sentencing order and abstract of judgment provides that “six (6) years and fifty-
    two (52) days” of Harpring’s previously suspended sentence are revoked and
    ordered executed. Appellant’s App. Vol. 2 at 45-47. While we presume that
    the written sentencing order and abstract of judgment provide the correct
    sentence, both parties appear confused and refer to the court’s oral statement as
    the punishment imposed. When there is conflict between the trial court’s
    statements, we may remand for clarification. Ramos v. State, 
    869 N.E.2d 1262
    ,
    1264 (Ind. Ct. App. 2007). Accordingly, we affirm the trial court’s revocation
    of Harpring’s probation, but due to the ambiguity regarding the punishment
    imposed, we remand to the trial court for clarification. 2
    2
    The State concedes that the trial court’s orders may be “unclear” and that remand for clarification is a
    proper remedy. State’s Br. at 12 n.2. Harpring argues that the trial court is without authority to order him to
    serve any executed term in excess of two years, since that was the length of his original suspended sentence.
    Harpring cites no legal authority for this proposition, and he acknowledges that the trial court subsequently
    modified his sentence, increasing the suspended portion of his sentence to a little more than eight and one-
    half years (3156 days). In its clarified order, the trial court has the discretion to order all or part of the
    previously suspended modified sentence to be executed. 
    Ind. Code § 35-38-2-3
    (h). In other words, a six-year
    and fifty-two-day executed sentence as provided for in the court’s written orders would not constitute an
    abuse of discretion.
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018                 Page 6 of 7
    [9]   Affirmed and remanded.
    Bailey, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 7 of 7
    

Document Info

Docket Number: 73A01-1711-CR-2693

Filed Date: 5/30/2018

Precedential Status: Precedential

Modified Date: 5/30/2018