Alfred Taylor v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Mar 13 2012, 9:31 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
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ALFRED TAYLOR, )
)
Appellant-Defendant, )
)
vs. ) No. 15A04-1109-CR-500
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Jonathan N. Cleary, Judge
Cause No. 15D01-1007-FC-9
March 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Alfred Taylor appeals his sentence upon the revocation of his probation. Taylor
raises one issue, which we restate as whether the trial court abused its discretion by
ordering him to serve 1,825 days of his previously-suspended sentence in the Department
of Correction. We affirm.
The facts most favorable to the revocation follow. On July 21, 2010, Taylor was
charged with nonsupport of a dependent child as a class C felony. On October 14, 2010,
Taylor and the State entered into a plea agreement pursuant to which Taylor agreed to
plead guilty and the State agreed to recommend that Taylor receive a sentence of 2,920
days of which 2,375 days would be suspended. Taylor agreed, pursuant to the plea
agreement, not to consume alcoholic beverages or illegal controlled substances. Taylor
also signed certain conditions of probation in which he agreed not to use any illegal drugs
or controlled substances. On January 25, 2011, the trial court entered judgment of
conviction and sentenced Taylor pursuant to the plea agreement.
On August 16, 2011, the Dearborn County probation office requested a probation
violation hearing alleging that Taylor had submitted to a urine screen on August 11,
2011, and “tested positive for Opiates (Confirmed as Total Morphine), Cocaine and
Alcohol” and that he submitted to a portable breath test on August 15, 2011, and “tested
.087 BrAc on the PBT” and that “[t]his is a violation of probation.” Appellant’s
Appendix at 18. On September 6, 2011, the court held an initial hearing at which Taylor
admitted to the violation. On September 7, 2011, after a sentencing hearing, the court
entered an order granting the petition to revoke probation and ordered that Taylor serve
1,825 days of his previously-suspended sentence.
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The sole issue is whether the trial court abused its discretion by ordering Taylor to
serve 1,825 days of his previously-suspended sentence in the Department of Correction.
Taylor argues that “the fact that he admitted his probationary lapse did save court time
and judicial resources” and that “[h]is admission alleviated the need for the State to
present a full-blown fact-finding hearing.” Appellant’s Brief at 5. Taylor further argues
that it is clear from the presentence investigation report that he has an untreated drug
problem and that “[r]ather than spend thousands of dollars incarcerating Taylor for the
next five years, the [S]tate’s resources would be better spent treating him.” Id. at 6.
Taylor also argues that “the revocation of five years was not necessary to bring about his
reform.” Id. Taylor requests this court to reverse the decision of the trial court and issue
an order directing that one year of his previously-suspended sentence be revoked.
The State argues that Taylor “admitted that he had violated the conditions of his
probation by testing positive for opiates, cocaine and alcohol” and that “[t]his action was
not merely a violation of the terms of his probation but also constituted a new criminal
offense.” Appellee’s Brief at 4. The State further argues that, while Taylor “seems to
suggest that he should have been given credit for admitting that he violated the terms of
his probation,” the trial court “did precisely this, observing that it could revoke the entire
six and a half year probation, but gave [Taylor] credit for admitting that he had violated
the terms of his probation, and instead revoked five years of his probation.” Id. at 5. The
State also asserts, with respect to Taylor’s argument regarding treatment, that Taylor
“appears to overlook the fact that on five previous occasions counseling has been ordered
for him, but it has not seemed to have affected his behavior” and that “on three separate
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occasions the trial court has shown him leniency and given him probation, only to have
[Taylor] violate the terms of his probation.” Id.
Ind. Code § 35-38-2-3(g) sets forth a trial court’s sentencing options if the trial
court finds a probation violation. The provision provides:
If the court finds that the person has violated a condition at any time before
termination of the 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.
Ind. Code § 35-38-2-3(g). Ind. Code § 35-38-2-3(g) permits judges to sentence offenders
using any one of or any combination of the enumerated options. Prewitt v. State, 878
N.E.2d 184, 187 (Ind. 2007).
The Indiana Supreme Court has held that a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard. Id. at 188.
The Court explained that “[o]nce a trial court has exercised its grace by ordering
probation rather than incarceration, the judge should have considerable leeway in
deciding how to proceed” and that “[i]f this discretion were not afforded to trial courts
and sentences were scrutinized too severely on appeal, trial judges might be less inclined
to order probation to future defendants.” Id. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and circumstances. Id. (citation
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omitted). 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).
Here, at the September 7, 2011 hearing, the State argued that Taylor had a
significant criminal history which included two previous probation violations. The State
also noted that Taylor has made some support payments since he was convicted on
January 25, 2011, but not the ordered amount, and that his arrears had increased to
$18,682. The State then recommended that the entire 2,375 days of Taylor’s previously-
suspended sentence be revoked. Taylor stated that he had an upcoming modification
hearing regarding his child support and that the reason he fell behind was because he had
been recently laid off from his job. The State noted that Taylor was “not here for not
paying” but “because he tested for opiates, cocaine and alcohol.” Transcript at 15.
The trial court found using opiates, cocaine and alcohol while on probation to be a
serious violation of probation. The court stated that it considered “the criminal history . .
. of drug paraphernalia; public intoxication; OWI; possession of marijuana; public
intoxication; felony OWI; resisting law enforcement; possession of marijuana; public
intoxication; [and] furnishing alcohol to a minor.” Id. at 17. The presentence
investigation report (the “PSI”) reveals that Taylor was convicted of possession of
paraphernalia in 1995, public intoxication in 1996, O.W.I. in 2007, two counts of
possession of marijuana, public intoxication, O.W.I. /w Prior, and resisting law
enforcement in 1998, public intoxication and domestic battery in 2004, furnishing alcohol
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to minor in 2005, and nonsupport of dependent child in 2010. The PSI also shows that
Taylor was found to have violated probation in 1996 and 2005.
Further, the court stated that it considered the fact that the child support payments
“are not being made as required by the sentencing order” and that “the Court finds that
the culpability of [] Taylor and his probation violation is high.” Id. The court further
stated that it “finds mitigating that [] Taylor has admitted to this probation violation,
without any plea agreement, which is an open admission to the Court.” Id. at 17-18. The
court then noted that it had “discretion to revoke up to six and a half years” and that
“[l]aying [out] these aggravating and mitigating factors, the Court does give [] Taylor a
credit for taking responsibility and admitting as early as his initial hearing that he has
violated probation” and then ordered that Taylor serve five years, or 1,825 days, of his
previously-suspended sentence of six and a half years, or 2,375 days. Id. at 18.
Given the circumstances, we cannot say that the trial court abused its discretion in
ordering Taylor to serve a portion of the previously-suspended portion of his sentence.
See Jones v. State, 838 N.E.2d 1146, 1149 (Ind. Ct. App. 2005) (holding that the trial
court did not abuse its discretion in ordering the defendant to serve a portion of his
previously suspended sentence as a result of probation violations).
For the foregoing reasons, we affirm the trial court’s order that Taylor serve 1,825
days of his previously-suspended sentence in the Department of Correction.
Affirmed.
MAY, J., and CRONE, J., concur.
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