Omar G. Burton v. State of Indiana ( 2013 )

  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before                       FILED
    any court except for the purpose of                       Feb 14 2013, 8:32 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.                     CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court
    JANE ANN NOBLITT                                  GREGORY F. ZOELLER
    Columbus, Indiana                                 Attorney General of Indiana
                                                      JUSTIN F. ROEBEL
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    OMAR G. BURTON,                                   )
           Appellant-Defendant,                       )
                  vs.                                 )       No. 03A01-1206-CR-263
    STATE OF INDIANA,                                 )
           Appellee-Plaintiff.                        )
                            The Honorable Chris D. Monroe, Judge
                               Cause No. 03D01-9605-CF-454
                                          February 14, 2013
    BARTEAU, Senior Judge
                                   STATEMENT OF THE CASE
           Omar Burton appeals the sentence imposed by the trial court following the
    revocation of his probation. We affirm.
           Burton raises one issue, which we restate as whether the trial court abused its
    discretion by ordering him to serve the balance of his suspended sentence following the
    revocation of his probation.
                            FACTS AND PROCEDURAL HISTORY
           In 1996, Burton was convicted of Class B felony burglary and Class D felony
    theft. The trial court imposed concurrent sentences of twenty years for the burglary and
    three years for the theft, with five years of the aggregate sentence suspended to probation.
    The court noted that Burton was being sentenced in three other cause numbers on the
    same day and ordered all of the sentences to run consecutively in a specific sequence,
    with the sentence in this cause to be served third in line.
           In November 2008, Burton filed a motion under all four cause numbers to set a
    hearing and modify his sentences.        The trial court ordered Burton to clarify which
    sentences had been served and which sentences he sought to modify. Burton informed
    the court that he was currently serving the executed sentence in this cause, with two and a
    half years left to serve, and that he still had one more executed sentence and two terms of
    probation to complete. At a hearing in March 2009, the court modified Burton’s sentence
    in this cause by suspending the balance of his sentence and by placing him on probation
    for four years, consecutive to the probation ordered in the last cause number to be served.
           The State filed a petition to revoke Burton’s probation in June 2010. In the
    petition, the State alleged that Burton failed to report to two probation appointments, left
    the state without obtaining permission from the court and was currently residing in
    Wisconsin, failed to report an address change, failed to report he had contacts with
    Wisconsin police, and associated with individuals on probation. At a hearing in April
    2011, Burton admitted that he violated his probation by failing to report to the
    appointments, leaving the state without permission, and failing to report his address
    change. The court gave Burton credit for time served, returned him to probation, and
    ordered him to pay the extradition costs.
           One month later in May 2011, Burton entered into an administrative agreement
    with the probation department in which he admitted that he violated his probation by
    using methamphetamine and agreed to be placed in a residential program.
           In November 2011, the State filed a second petition to revoke Burton’s probation.
    In the petition, the State alleged that Burton admitted to using methamphetamine,
    benzodiazepines, and marijuana in October, left his home without authorization from
    community corrections and his whereabouts were unknown, and was in arrears on over
    $1600 in fees. At a hearing in February 2012, Burton admitted that he violated his
    probation by using methamphetamine, benzodiazepines, and marijuana.              The court
    imposed the original twenty-year aggregate sentence with no time suspended. It gave
    Burton credit for all the time previously served in this cause at the Department of
    Correction before the sentence modification, 306 credit days for time spent in
    confinement “as a result of this charge,”1 and 244 credit days for time served in the
    residential program. Appellant’s App. p. 212. Burton now appeals.
                                   DISCUSSION AND DECISION
           Burton contends that the trial court abused its discretion by ordering him to serve
    the balance of his suspended sentence following the revocation of his probation. A trial
    court’s sentencing decisions for probation violations are reviewable for an abuse of
    discretion. Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). An abuse of discretion
    occurs where the decision is clearly against the logic and effect of the facts and
    circumstances. Id. A trial court may order execution of all or part of a suspended
    sentence upon a violation of probation. Ind. Code § 35-38-2-3(g)(3) (2010).
           This was Burton’s third admitted probation violation and the second violation in
    which he admitted using methamphetamine. Despite being afforded leniency with his
    previous violations, he failed to adjust his behavior.
           Burton nonetheless argues that he has shown he can be successful if given
    direction and structure, but the probation department failed to offer him temporary
    options in residential and work release programs when he lost his job and apartment. His
    probation officer, however, stated that Burton never told him he was going to lose his
    apartment and never asked about alternative placements such as work release. When
    asked about changing residences, Burton testified, “[O]nce that progressed I just kind of
      The court specified the dates of confinement, which include time periods before the State’s second
    petition to revoke Burton’s probation.
    gave up, figured I would wait until they caught me and then I would deal with what I had
    to deal with then.” Tr. p. 151.
           Burton also argues that he took responsibility for his probation violations and that
    his transition to living a clean life was bound to be rough. He further argues that, since
    he was given credit for time served and returned to probation following his first probation
    violation, the trial court should have “step[ped] up the consequences to match Mr.
    Burton’s learning curve” instead of ordering him to serve the balance of his suspended
    sentence. Appellant’s Br. p. 14. We cannot agree. Probation is a matter of grace and a
    conditional liberty which is a favor, not a right. Cooper v. State, 
    917 N.E.2d 667
    , 671
    (Ind. 2009). Burton was given an opportunity through probation to get assistance with
    his transition. He squandered that opportunity by repeatedly violating his probation.
           The trial court did not abuse its discretion by ordering him to serve the balance of
    his suspended sentence.
           We therefore affirm the trial court’s judgment.
    FRIEDLANDER, J., and BROWN, J., concur.

Document Info

DocketNumber: 03A01-1206-CR-263

Filed Date: 2/14/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014