Uriah M. Levy 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                                       Jul 28 2014, 9:27 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:
    
    DONALD E.C. LEICHT                                  GREGORY F. ZOELLER
    Kokomo, Indiana                                     Attorney General of Indiana
    
                                                        CYNTHIA L. PLOUGHE
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana
    
    
    
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    URIAH M. LEVY,                                      )
                                                        )
           Appellant-Respondent,                        )
                                                        )
                   vs.                                  )      No. 34A04-1402-CR-67
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
           Appellee-Petitioner.                         )
    
    
                         APPEAL FROM THE HOWARD SUPERIOR COURT
                            The Honorable William C. Menges, Jr., Judge
                                  Cause No. 34D01-1205-FC-451
    
    
                                               July 28, 2014
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    BRADFORD, Judge
                                         CASE SUMMARY
    
              As part of a plea agreement, Appellant-Respondent Uriah Levy pled guilty to Class D
    
    felony cocaine possession and Class A misdemeanor carrying a handgun without a license.
    
    The trial court imposed a sentence of 548 days of incarceration for cocaine possession and
    
    365 days for carrying a handgun without a license, credited Levy with ninety-four days
    
    served, ordered that the sentences be served consecutively, suspended the balance, and placed
    
    Levy on probation for 360 days. Ultimately, after the trial court found that Levy had violated
    
    the terms of his probation for second time, it revoked his probation and imposed a sentence
    
    of ten days fewer than the entire suspended portion. Levy contends that the trial court abused
    
    its discretion in ordering that he serve all but ten days of his remaining suspended sentence
    
    while leaving in place a period of probation to be served after release from incarceration. We
    
    affirm.
    
                             FACTS AND PROCEDURAL HISTORY
    
              On September 26, 2012, Levy pled guilty to Class D felony cocaine possession and
    
    Class A misdemeanor carrying a handgun without a license. That same day, the trial court
    
    sentenced Levy to 548 days of incarceration for cocaine possession, credited him with ninety-
    
    four days served, and suspended the balance. The trial court sentenced Levy to one year of
    
    incarceration for carrying a handgun without a license and suspended the entire sentence.
    
    The trial court ordered that the sentences for both counts be served consecutively and placed
    
    Levy on probation for 360 days. In summary, Levy had 360 days remaining on his cocaine
    
    possession sentence and 365 days on his carrying a handgun without a license sentence.
    
    
                                                   2
           On April 4, 2013, the trial court found that Levy had violated the terms of his
    
    probation, imposed 142 days of his previously-suspended sentence, and extended his
    
    probation by 183 days. The trial court credited Levy with seventy-one actual days spent in
    
    jail awaiting the disposition of Appellee-Petitioner the State of Indiana’s petition to revoke
    
    suspended sentence, and for credit time of 142 days, to be applied against his carrying a
    
    handgun without a license sentence. The trial court’s April 4, 2013, disposition left Levy
    
    with 360 days remaining on his cocaine possession sentence and 223 remaining on his
    
    carrying a handgun without a license sentence.
    
           On January 2, 2014, the trial court found that Levy had again violated the terms of his
    
    probation. On January 23, 2014, the trial court found that Levy had served 102 actual days
    
    awaiting the disposition of the State’s petition to revoke his suspended sentence, ordered him
    
    to serve 360 days in the Department of Correction (“DOC”) for cocaine possession, ordered
    
    him to serve 213 days (out of 223 remaining) in the Howard County Jail for carrying a
    
    handgun without a license, and credited him with 204 days of credit time against his carrying
    
    a handgun without a license sentence. The effect of the trial court’s January 23, 2014,
    
    disposition was that Levy would serve nine additional days in the Howard County Jail for
    
    carrying a handgun without a license and 360 in the DOC for cocaine possession, and that
    
    only ten days of his original sentence had yet to be ordered executed. Additionally, Levy
    
    would still serve 183 days on probation when released from incarceration.
    
                                 DISCUSSION AND DECISION
    
           Probation is a “matter of grace” and a “conditional liberty that is a favor, not a right.”
    
    
                                                   3
    Marsh v. State, 
    818 N.E.2d 143
    , 146 (Ind. Ct. App. 2004) (quoting Cox v. State, 
    706 N.E.2d 547
    , 549 (Ind. 1999)). We review a trial court’s probation revocation for an abuse of
    
    discretion. Sanders v. State, 
    825 N.E.2d 952
    , 956 (Ind. Ct. App. 2005), trans. denied. An
    
    abuse of discretion occurs where the decision is clearly against the logic and effect of the
    
    facts and circumstances. Prewitt v. State, 
    878 N.E.2d 184
    , 187 (Ind. 2007). 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).
    
           Levy seems to argue that the trial court left ten days of his sentence unexecuted so that
    
    his 183-day probation would remain in effect, characterizing this as an abuse of discretion.
    
    Levy’s argument, as we interpret it, presupposes that the trial court could not have left his
    
    183-day probation in place had it ordered all of his suspended sentence to be executed. This,
    
    however is not the case. Indiana Code subsection 35-38-2-3(h) provides that
    
           (h) 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.
    
    (Emphasis added). Pursuant to the relevant statute, the trial court was within its authority to
    
    order a portion of Levy’s sentence to be executed as well as leaving the previously-ordered
    
    extended probationary period in effect, and Levy cites to no other authority suggesting an
    
                                                   4
    abuse of discretion was committed here. We conclude that the trial court did not abuse its
    
    discretion in its disposition.
    
           The judgment of the trial court is affirmed.
    
    BARNES, J., and BROWN, J., concur.
    
    
    
    
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Document Info

DocketNumber: 34A04-1402-CR-67

Filed Date: 7/28/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014