Keith Hosea v. State of Indiana ( 2012 )


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  •                                                                 FILED
    Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
                                                                  Oct 05 2012, 8:35 am
    any court except for the purpose of
    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
    
    
    
    
    ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
    
    JILL M. ACKLIN                                      GREGORY F. ZOELLER
    Acklin Law Office, LLC                              Attorney General of Indiana
    Westfield, Indiana
                                                        GARY R. ROM
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana
    
    
    
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    KEITH HOSEA,                                        )
                                                        )
           Appellant-Defendant,                         )
                                                        )
                   vs.                                  )   No. 24A01-1202-CR-76
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
           Appellee-Plaintiff.                          )
    
    
                          APPEAL FROM THE FRANKLIN CIRCUIT COURT
                              The Honorable Clay M. Kellerman, Judge
                                  Cause No. 24C02-0806-FD-286
    
    
                                              October 5, 2012
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    BAILEY, Judge
                                           Case Summary
    
           Keith Hosea (“Hosea”) pled guilty to Driving While Intoxicated, as a Class D felony,
    
    in Franklin County, and a portion of his sentence was suspended to probation. He again
    
    committed Driving While Intoxicated, this time in Rush County, after which the Franklin
    
    County trial court revoked his probation and ordered him to serve the remainder of his
    
    sentence as executed time. Hosea now appeals the revocation of his probation, contending
    
    that the trial court abused its discretion when it ordered the entirety of his suspended sentence
    
    be served as executed time.
    
           We affirm.
    
                                   Facts and Procedural History
    
           On November 3, 2009, Hosea pled guilty to Operating a Vehicle While Intoxicated, as
    
    a Class D felony, and was sentenced to 24 months imprisonment with 15 months suspended
    
    to probation. A probation order was entered the same day. Among the conditions of
    
    probation were requirements that Hosea “not violate any law (Federal, State, or local),” and
    
    that he “not consume any alcoholic beverages.” (Ex. 2.) Hosea signed the order, thereby
    
    acknowledging that he had been informed of the requirements of his probation and of the
    
    possibility that his probation would be revoked in the event of any violations.
    
           On May 6, 2010, Hosea was arrested in Rush County and was charged with, among
    
    other offenses, Operating a Vehicle with a .08% or .15% or More Blood Alcohol Content, as
    
    a Class D felony. Hosea pled guilty to this offense, and on July 13, 2010, judgment of
    
    conviction was entered against him.
    
    
                                                   2
           On June 22, 2010, during the pendency of the Rush County case, Brian Campbell,
    
    Chief Probation Officer for the Franklin Circuit Court, filed a Verified Petition of Probation
    
    Violation, alleging that Hosea’s conduct in Rush County had violated his probation in the
    
    Franklin County case.
    
           After completing the executed portion of his sentence in the Rush County case, Hosea
    
    was released from custody, but failed to appear for a Revocation Hearing the trial court had
    
    scheduled for May 26, 2011. A bench warrant was issued the same day, after which Hosea
    
    was arrested.
    
           After several continuances, a Revocation Hearing was conducted on January 19, 2012,
    
    at the conclusion of which the trial court found that Hosea had violated the requirements of
    
    and therefore revoked his probation. The trial court ordered Hosea to serve the probated
    
    portion of his sentence as executed time in the Department of Correction.
    
           This appeal ensued.
    
                                     Discussion and Decision
    
           Hosea couches his appeal as one challenging the revocation of his probation. The
    
    legal standard for revocation of probation and our review of such decisions on appeal is well-
    
    settled:
    
           Probation is a matter of grace and a conditional liberty which is a favor, not a
           right. Johnson v. State, 
    659 N.E.2d 194
    , 198 (Ind. Ct. App. 1995). The trial
           court determines the conditions of probation and may revoke probation if those
           conditions are violated. The decision to revoke probation is within the sound
           discretion of the trial court. Reyes v. State, 
    868 N.E.2d 438
    , 440 (Ind. 2007).
           And its decision is reviewed on appeal for abuse of that discretion. Prewitt v.
           State, 
    878 N.E.2d 184
    , 188 (Ind. 2007).
    
    
                                                  3
    Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind. 2009). When a defendant violates probation “and
    
    the petition to revoke is filed within the probationary period,” a trial court may “[o]rder
    
    execution of all or part of the sentence that was suspended at the time of initial sentencing.”
    
    Ind. Code § 35-38-2-3(g)(3) (2010) (superseded by I.C. § 35-38-2-3(h)(3) (2012)).
    
           Here, after Hosea’s conviction for a subsequent offense in Rush County, the trial court
    
    revoked his probation and ordered him to serve the suspended portion of his sentence in
    
    prison. Hosea does not argue that the trial court abused its discretion in revoking his
    
    probation. Rather, he argues that “principles of equity would call for a sentence of
    
    significantly less than fifteen months because of the significant amount of time Hosea had
    
    already spent on probation and incarcerated awaiting disposition” with the exception of his
    
    Rush County offense. (Appellant’s Br. at 7.)
    
           First, Hosea offers no citation to authority for the premise that he may seek relief on
    
    equitable principles. Thus, his argument on appeal is waived. See Ind. Appellate Rule
    
    46(A)(8)(a) (requiring that briefs be “supported by cogent reasoning” and “citations to the
    
    authorities … relied on”).
    
           Waiver notwithstanding, we cannot agree with Hosea that the trial court abused its
    
    discretion when it ordered him to serve as executed time the fifteen months of probation.
    
    During his probationary period, Hosea committed an offense similar to that for which he was
    
    sentenced in the present case. He argues that he “had been released for seven months with a
    
    chance to build his life outside of jail before being re-incarcerated on the probation
    
    violation.” (Appellant’s Br. at 7.) However, he declines to note that he did not appear for the
    
    
                                                  4
    May 26, 2011, probation revocation hearing and was incarcerated as a result of his failure to
    
    appear.
    
           Under these circumstances, we cannot conclude that the trial court abused its
    
    discretion when it ordered Hosea to serve as executed time the entire fifteen-month term that
    
    had previously been suspended to probation.
    
           Affirmed.
    
    RILEY, J., and CRONE, J., concur.
    
    
    
    
                                                  5
    

Document Info

DocketNumber: 24A01-1202-CR-76

Filed Date: 10/5/2012

Precedential Status: Non-Precedential

Modified Date: 10/30/2014