Derek R. Odom v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 12 2019, 9:09 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek R. Odom, November 12, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1123
v. Appeal from the
Vigo Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Sarah K. Mullican, Judge
Trial Court Cause No.
84D03-1805-F3-1764
Kirsch, Judge.
[1] Derek R. Odom (“Odom”) appeals the revocation of his probation raising one
issue: whether the trial court abused its discretion when it revoked his
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probation and ordered him to serve four years of his previously-suspended five-
year sentence.1
[2] We affirm.
Facts and Procedural History
[3] On May 24, 2018, the State charged Odom with Count 1, aggravated battery as
a Level 3 felony; Count 2, intimidation as a Level 5 felony; Count 3,
intimidation as a Class A misdemeanor; and Count 4, battery as a Class B
misdemeanor. Appellant’s App. Vol. 2 at 17-18. On October 9, 2018, Odom
pleaded guilty to Count 1’s lesser included offense of battery resulting in serious
bodily injury, a Level 5 felony. Pursuant to a court-approved plea agreement,
Odom was sentenced on November 8, 2018 to six years in the Indiana
Department of Correction (“DOC”), with all but time served suspended to
probation, and the State dismissed Counts 2 through 4. Id. at 51-52, 74-75.
[4] Odom was in Indiana for about a week after his November 8, 2018 sentencing
hearing but did not report to his probation officer, Joseph Pilotte (“Pilotte”), as
directed. Tr. Vol. II at 6, 8, 23. Pilotte tried to contact Odom, but Odom never
gave Pilotte a current address or phone number. Id. at 7-8. Odom also did not
respond to communications Pilotte made through phone calls with Odom’s
1
Odom was sentenced to six years. At the time of sentencing, Odom had credit for 225 days served.
Accordingly, the trial court suspended five-years and forty days of his six-year sentence. Because the forty
days are not significant for this decision, we will refer to the suspended portion of Odom’s sentence as being
five-years.
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mother and aunt. Id. at 31. On December 27, 2018, the State filed a notice of
probation violation alleging that Odom failed to report to the probation
department as ordered by the trial court and failed to provide his probation
officer with a current address and phone number. Appellant’s App. Vol. 2 at 81.
[5] On January 7, 2019, while in the custody of the Vigo County Sheriff’s
Department, Odom appeared before the trial court on the matter of the notice
of probation violation. Id. at 84. Following that hearing, the trial court
instructed Odom to immediately report to his probation officer and provide the
probation department with a current address. Id. at 84. Again, Odom failed to
report or provide any information. Id. at 89.
[6] During the April 18, 2019 probation revocation hearing, Pilotte testified that
Odom never reported for probation. Tr. Vol. II at 6. Pilotte had seen Odom
only twice; neither time did Odom voluntarily report to probation.2 During the
probationary period, Odom was extradited to Michigan due to a pending arrest
warrant. Id. at 13. Pilotte understood there was a conflict with Odom having
to appear before both the Indiana and Michigan courts. Id. at 13. Id. Even so,
Pilotte said, “[W]hen [Odom] does return to our county he just doesn’t show.”
Id. at 6. Understanding that he had not reported for probation, Odom
suggested that his case in Michigan had prevented him from reporting to
2
Pilotte saw Odom during the January 7, 2019 hearing when he was in the custody of the Vigo County
Sheriff’s Department. Appellant’s App. Vol. 2 at 84. The second time Pilotte saw Odom was on February 19,
2019 when Odom was incarcerated in the Vigo County Jail. Tr. Vol. II at 6, 12-14.
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probation in Indiana. Id. at 18. Downplaying his failure to appear, Odom said
he did not have an appointment, “I was just supposed to go and get in
compliance . . ..” Id. at 19.
[7] In closing argument, the State said:
[C]onsidering Mr. Odom’s extensive and significant criminal
history, which includes convictions for murder, felony home
invasion, felony assault on an officer, as well as other felonies
um, the Plea Agreement in this case was extremely generous.
Uh, and taking into account that Mr. Odom has been in and out
of the criminal justice system for the majority of his life uh, Mr.
Odom knows how to check in with a probation officer and
understands the consequences for failing to abide by the terms
and conditions of his probation. Uh, accordingly, the State . . .
can find no reason to give Mr. Odom yet another chance. And
therefore again requests that his probation be revoked and the
remainder of his sentence um, be executed in the [DOC].
Id. at 26-27.
[8] Defense counsel responded:
[S]o uh, to say now that we’re going to just simply reimpose the
balance of a five (5) year sentence, when we have basically a man
who was unable for significant periods of time to even report
because he was being held in another jurisdiction uh, strikes me
as being extremely um, unjust. Um, Mr. Odom uh, pled guilty,
he’s not violated the terms of his no contact order, and the case
for which Michigan relates to predates um, the case for which he
pled and accepted responsibility for here. In the meantime, . . .
the evidence is [] that he was in Michigan, and he was in there
for a substantial period of time at the time the very first petition
to revoke was actually filed.
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Id. at 28. Defense counsel stated that Odom had about twenty to thirty days
during which he could contact probation. As such, “[G]iving up five years of
his life for that, I think that’s an extreme remedy.” Id.
[9] At the close of the hearing, the trial court addressed Odom, saying:
I released you in November, I know you were released for a
period of time before you went to Michigan, because you went to
Michigan, you were there in November, um, and then you were
released—or certainly were here in January, . . . living maybe in
the Rodeway Inn and did not report to probation, knew you were
supposed to. Um, it looks like Mr. Pilotte’s been in contact with
your family and uh, gone probably out of his way to find you.
It’s not up to him to chase you all over. Um, the Court is not
considering the fact that you have a case in Michigan . . . and
that you’ve failed to appear there. That’s not part of the reason
why I would revoke your sentence or find that you violated it. . ..
It seems to me that it’s not up to probation to chase you all over
the country . . . when you come back here and communicate
with . . . your mother and [they] find out where you are living . . .
send you letters there, and then you [do] not report.
Id. at 30-31. The trial court concluded:
“I’ve looked at your pre-sentence report, and you do have a
criminal history . . . much of which is violent. Um, the plea
agreement was six (6) years, one (1) of which was executed and
the balance was suspended, so you have at least five (5) years . . .
to the extent you’ve had these cases, it does appear that you have
a long history of not appearing, and not . . . following the rules . .
. . the Court’s gonna revoke uh, four (4) years of your five (5)
years, and send you to the [DOC].
Id. at 32-34. Odom now appeals.
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Discussion and Decision
[10] Odom contends that the trial court abused its discretion when it revoked his
probation and ordered him to serve four years of his previously suspended
sentence. Our courts have long noted that probation is an alternative to
incarceration and is granted at the sole discretion of the trial court. Davis v.
State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a
defendant is not entitled to serve a sentence on probation; instead, probation is
a matter of grace and a conditional liberty that is a favor, not a right. Id.
[11] Probation revocation is a two-step process. Hampton v. State, 71 N.E.3d 1165,
1171 (Ind. Ct. App. 2017), trans. denied. “First, the trial court makes a factual
determination that a violation of a condition of probation actually occurred;
second, if a violation is proven, the trial court must determine if the violation
warrants a revocation of the probation.” Id. Upon revoking probation, the trial
court may impose one of several sanctions provided by statute: (1) continue the
period of probation; (2) extend the length of the defendant’s period of
probation; or (3) order the defendant to execute part or all of the suspended
sentence. Id.; see Ind. Code § 35-38-2-3(h).
[12] “‘We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion.’” Johnson v. State, 62 N.E.3d 1224, 1229
(Ind. Ct. App. 2016) (quoting Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct.
App. 2011)). An abuse of discretion occurs if the trial court’s decision is against
the logic and effect of the facts and circumstances before the court. Id. at 1230.
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This court affirms a decision to revoke probation when there is “substantial
evidence of probative value” to support a trial court’s decision that a defendant
has violated the conditions of his probation. Woods v. State, 892 N.E.2d 637,
639-40 (Ind. 2008). We will not reweigh the evidence or judge the credibility of
the witnesses but only consider the evidence most favorable to the verdict. Id.
[13] Odom does not dispute the trial court’s finding that he violated a condition of
his probation by failing to report to his probation officer. Appellant’s Br. at 7.
Instead, Odom argues that the trial court abused its discretion when it
terminated his probation and ordered him to serve four years of his remaining
five-year suspended sentence. Appellant’s Br. at 7.
[14] Our Supreme Court has said that a defendant must be given the opportunity to
offer mitigating evidence to show that the violation does not warrant
revocation. Woods, 892 N.E.2d at 640. At the probation revocation hearing,
defense counsel argued that Odom: (1) had been unable for significant periods
of time to report to probation because he was being held in another jurisdiction;
(2) had pleaded guilty to his charge in Indiana; (3) had remained compliant
with a no contact order; and (4) had told Pilotte that he would “try” to remain
in compliance with his probation. Tr. Vol. II at 28, 32 (emphasis added). After
considering Odom’s evidence, the trial court, noting Odom’s “long history of
not appearing,” sentenced him to serve four years of his remaining suspended
sentence. Id. at 32.
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[15] Odom argued to the trial court that he did not have adequate time to report to
probation. However, the trial court, accepting the State’s argument that
Odom’s failure to report did not arise from the conflict with his Michigan case,
revoked Odom’s probation and ordered him to serve four years of his
previously-suspended five-year sentence in the DOC. Odom presents our court
with the same evidence and arguments that he made to the trial court. Under
our standard of review, we cannot reweigh the evidence or judge the credibility
of the witnesses. Figures v. State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010).
Instead, we must consider only the evidence most favorable to the judgment.
Id. As such, we find that the trial court did not abuse its discretion when it
revoked Odom’s probation and ordered him to serve four years of a previously-
suspended five-year sentence.
[16] Affirmed.
Baker, J., and Crone, J., concur.
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