Michael Whittaker v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before                 Dec 17 2014, 9:10 am
    any 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:
    CARA SCHAEFER WIENEKE                             GREGORY F. ZOELLER
    Wieneke Law Office, LLC                           Attorney General of Indiana
    Plainfield, Indiana
    RICHARD C. WEBSTER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    MICHAEL WHITTAKER,                                )
    )
    Appellant-Defendant,                       )
    )
    vs.                                )        No. 84A01-1407-CR-310
    )
    STATE OF INDIANA,                                 )
    )
    Appellee-Plaintiff.                        )
    APPEAL FROM THE VIGO SUPERIOR COURT
    The Honorable David R. Bolk, Judge
    Cause No. 84D03-1006-FC-2093
    December 17, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BROWN, Judge
    Michael Whittaker appeals the revocation of his probation. Whittaker raises one
    issue which we revise and restate as whether the court abused its discretion in ordering
    that he serve his previously suspended sentence in the Department of Correction. We
    affirm.
    FACTS AND PROCEDURAL HISTORY
    On September 30, 2010, Whittaker pled guilty to nine counts of forgery as class C
    felonies pursuant to a plea agreement stating that Whittaker would be sentenced to four
    years on each count to be served concurrently, with the balance suspended to probation
    except for the 218 days of credit time for the period he served in the Vigo County Jail
    while the charges were pending.         On November 1, 2010, the trial court sentenced
    Whittaker in accordance with the plea agreement. On October 2, 2013, the State filed a
    notice of probation violation alleging that Whittaker failed to report to the Adult
    Probation Department, failed to pay restitution, and failed to pay probation fees, and a
    bench warrant was issued for Whittaker’s arrest. On April 7, 2014, the State filed a
    petition to revoke probation alleging the same allegations as in the prior notice, as well as
    the following additional allegations:
    d.    On or about December 8, 2011, [Whittaker] committed the offense
    of Criminal Trespass, a Class A misdemeanor . . . and [was]
    convicted and sentenced on or about August 2, 2012;
    e.    On or about April 12, 2012, [he] committed the offense of Failure to
    Appear, a Class A misdemeanor, by intentionally failing to appear
    for a hearing on said date in the Terre Haute City Court in said
    Cause.
    2
    f.     On or about April 9, 2013, [he] committed the offense of Criminal
    Conversion . . . and [was] convicted and sentenced on or about
    March 27, 2014;
    g.     On or about August 31, 2013, [he] committed the offense of Theft, a
    Class D felony, for which he was charged in Cause No. 84D03-
    13090-FD-2931.
    Appellant’s Appendix at 61.
    On April 24, 2014, the court held a hearing in which Whittaker admitted each of
    the allegations other than the allegation contained in Paragraph g, the commission of the
    theft. The court revoked Whittaker’s probation and ordered the preparation of an updated
    presentence investigation report. On June 19, 2014, the court held a dispositional hearing
    on the alleged probation violations. At the hearing, Whittaker expressed interest in
    participating in a behavioral therapy program at the Hamilton Center for persons with
    criminal backgrounds.      Whittaker testified that he had a job with Quality Home
    Improvements awaiting his release from custody and presented a document stating the
    same, and he requested the trial court place him in the work release program so that he
    could earn money to be used for owed restitution and unpaid probation fees.             He
    acknowledged that during his probationary period he had made no effort to pay
    restitution and the probation fees.
    At the conclusion of the dispositional hearing, the court ordered Whittaker to serve
    the entirety of his suspended sentence and explained its reasoning as follows:
    . . . Mr. Whittaker, you probably understand as well as anyone in this room,
    you’ve been to the D.O.C. three (3) times. You didn’t go a fourth (4 th) time
    on this case originally, and you were ordered to do several things, very few
    of which you’ve done. You’ve committed two (2) crimes while you’re out
    3
    that you’ve admitted to[1] . . . which were Misdemeanors; you’ve been
    charged with a Felony; you failed to return to this jurisdiction; you’ve
    indicated to the Court that you were employed yet have not paid one (1)
    penny towards restitution or not paid anything towards any of your
    probation fees or Court costs. It’s easy now to say I want one (1) more
    chance, when you’ve had three and a half (3 ½) years of chances and have
    not availed yourself, really, of any of them. . . .
    June 19, 2014 Transcript at 40-41.
    DISCUSSION
    The issue is whether the court abused its discretion in ordering that Whittaker
    serve his previously suspended sentence in the Department of Correction. 
    Ind. Code § 35-38-2-3
    (h) sets forth a trial court’s sentencing options if the trial court found a
    probation violation and provides:
    If the court finds that the person has violated a condition at any time before
    termination of the period, and the petition to revoke is filed within the
    probationary period, the court may impose one (1) or more of the following
    sanctions:
    (1)     Continue the person on probation, with or without
    modifying or enlarging the conditions.
    (2)     Extend the person’s probationary period for not more
    than one (1) year beyond the original probationary
    period.
    (3)     Order execution of all or part of the sentence that was
    suspended at the time of initial sentencing.
    The Indiana Supreme Court has held that a trial court’s sentencing decisions for
    probation violations are reviewable for abuse of discretion. Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). The Court explained that “[o]nce a trial court has exercised its
    1
    As noted above, Whittaker admitted to committing three crimes, including criminal trespass,
    failure to appear, and conversion.
    4
    grace by ordering probation rather than incarceration, the judge should have considerable
    leeway in deciding how to proceed” and that “[i]f this discretion were not afforded to trial
    courts and sentences were scrutinized too severely on appeal, trial judges might be less
    inclined to order probation to future defendants.” 
    Id.
     An abuse of discretion occurs
    where the decision is clearly against the logic and effect of the facts and circumstances.
    
    Id.
     (citation omitted).   As long as the proper procedures have been followed in
    conducting a probation revocation hearing, “the trial court may order execution of a
    suspended sentence upon a finding of a violation by a preponderance of the evidence.”
    Goonen v. State, 
    705 N.E.2d 209
    , 212 (Ind. Ct. App. 1999).
    Whittaker argues that “the evidence was uncontroverted that [he] had a job
    available to him . . . which would have afforded him an opportunity to make restitution to
    his victims and pay the outstanding probation fees.” Appellant’s Brief at 4. He asserts
    that the court “should not have ordered [his] suspended sentence to be served in prison,
    but rather should have ordered [him] to work release so that he could work towards
    making his victim whole . . . and pay towards his outstanding probation fees.” 
    Id.
     The
    State argues that “the evidence substantially supports the disposition imposed by the trial
    court.” Appellee’s Brief at 5.
    The record reveals that Whittaker admitted to committing six different violations
    of his probation. He admitted to failing to report to the Adult Probation Department,
    failing to pay restitution, and failing to pay probation fees. In addition, he admitted to
    committing three offenses while on probation, including criminal trespass, failure to
    5
    appear, and criminal conversion. Given the circumstances as set forth above and in the
    record, we cannot say that the court abused its discretion in ordering Whittaker to serve
    his previously suspended sentence. See Milliner v. State, 
    890 N.E.2d 789
    , 793 (Ind. Ct.
    App. 2008) (holding that the trial court did not abuse its discretion in reinstating the
    probationer’s entire previously suspended sentence), trans. denied.
    CONCLUSION
    For the foregoing reasons, we affirm the court’s order revoking Whittaker’s
    probation and ordering that he serve his previously suspended sentence in the Department
    of Correction.
    Affirmed.
    BAILEY, J., and ROBB, J., concur.
    6
    

Document Info

Docket Number: 84A01-1407-CR-310

Filed Date: 12/17/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021