Darrell Spillers v. State of Indiana ( 2013 )

  •                                                                  Aug 30 2013, 5:32 am
     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:                               ATTORNEYS FOR APPELLEE:
    CARA SCHAEFER WIENEKE                                 GREGORY F. ZOELLER
    Wieneke Law Office, LLC                               Attorney General of Indiana
    Plainfield, Indiana
                                                          KARL SCHARNBERG
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                    IN THE
                          COURT OF APPEALS OF INDIANA
    DARRELL SPILLERS,                                     )
           Appellant-Defendant,                           )
                    vs.                                   )      No. 84A01-1302-CR-70
    STATE OF INDIANA,                                     )
           Appellee-Plaintiff.                            )
                            APPEAL FROM THE VIGO SUPERIOR COURT
                                The Honorable David R. Bolk, Judge
                                  Cause No. 84D03-1008-FB-2639
                                  Cause No. 84D03-0611-FC-3560
                                               August 30, 2013
           Darrell Spillers appeals the revocation of his probation and the execution of his
    previously suspended sentence. Spillers presents the following restated issues for review:
    Did the trial court err in revoking Spillers’s probation and executing the entire term of the
    suspended sentence?
           We affirm.
           The facts favorable to revocation are that Spillers was convicted of robbery as a class
    C felony and intimidation as a class D felony. He was sentenced to four years, with all but
    forty-four days suspended to probation. Included among the terms of probation was that
    Spillers would “report in person to the Adult Probation Office on or before the fifteenth day
    of each month, and at any other time upon a 24-hour notice.” Appellant’s Appendix at 47.
    Also, he was required to avoid any contact with controlled substances. On November 10,
    2012, Spillers’s probation officer filed a notice of probation violation alleging that Spillers
    had failed to report to the Adult Probation Department during the months of June, July, and
    August in 2012.
           A probation revocation hearing was conducted on December 13, 2012. At that
    hearing, Spillers acknowledged that he did not report to his probation officer from the
    beginning of April 2012 until the middle of November 2012, when he was arrested for
    violating probation. Thus, he missed eight consecutive reporting dates, well in excess of the
    three alleged in the notice of probation violation. In his presentence investigation report
    (PSI), Spillers admitted he had used marijuana, cocaine, and “wet” (marijuana cigarettes
    soaked in embalming fluid) prior to his incarceration. PSI at 10. He claimed he had been
    homeless, depressed, and without financial means to obtain prescribed medications, which
    triggered mental issues, which in turn caused him to fail to report. At the conclusion of the
    hearing, the trial court found Spillers to be in violation of his probation. The court revoked
    probation and imposed the previously suspended 1516-day sentence.
           Probation is a matter of grace that confers conditional liberty; it is a favor, not a right.
    Cooper v. State, 
    917 N.E.2d 667
     (Ind. 2009). The trial court sets the conditions of probation
    and is authorized to revoke probation if those conditions are violated. Id. The decision
    whether to revoke probation is committed to the trial court’s sound discretion. Id. We
    review its decision for abuse of discretion. Id.
           The evidence adduced at the hearing reflected that Spillers violated the terms of his
    probation by failing to report to his probation officer for a period of eight months. Although
    it was not alleged, there is also evidence that he violated his probation by using illegal
    substances. “[U]ltimately it is the trial court’s discretion as to what sanction to impose under
    [I.C. § 35–38–2–3(g) (West, Westlaw current with all 2013 legislation)]” and the trial court
    was statutorily authorized to execute the entirety of Spillers’s previously suspended sentence.
    Abernathy v. State, 
    852 N.E.2d 1016
    , 1022 (Ind. Ct. App. 2009).
           Spillers does not challenge the finding that he violated his probation. Rather, he
    contends the trial court abused its discretion in revoking probation on that basis and imposing
    the entire suspended sentence. He notes that at the revocation hearing he described to the
    court various physical and mental health problems he had experienced. He also explained
    that he was unable to obtain proper medication to control his mental health issues, and that
    failure to take those medications rendered him in such a condition that he was unfit to report
    to his probation officer. In the end, he claims that the trial court’s judgment was erroneous
    because, although he violated the condition of probation as charged, “it was a technical
    violation only and was not likely to recur.” Appellant’s Brief at 5-6.
           Our research reveals no classification of probation violation labeled “technical.”
    Whatever it means, or whatever Spillers intends it to mean in this context, it is of no legal
    significance. A violation is a violation. Moreover, his claim that this is not likely to recur is
    not persuasive. This violation constituted a pattern of repeated violations of the same
    condition over a period of months. This, coupled with Spillers’s extensive criminal history,
    along with evidence on the PSI that while on probation he violated yet another, uncharged
    condition, supplied an ample basis for the trial court’s order. Accordingly, the trial court did
    not abuse its discretion by revoking Spillers’s probation and ordering him to serve the
    remainder of his suspended sentence.
           Judgment affirmed.
    BAKER, J., and VAIDIK, J., concur.

Document Info

DocketNumber: 84A01-1302-CR-70

Filed Date: 8/30/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014