Roger A. Burris, II v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 19 2017, 8:37 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger A. Burris, II, December 19, 2017
Appellant-Defendant, Court of Appeals Case No.
28A04-1705-CR-1019
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena A. Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1109-FB-120
Mathias, Judge.
[1] Roger Burris (“Burris”) appeals the Green Superior Court’s order revoking his
probation. Burris does not challenge the court’s decision revoking his probation
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and ordering him to serve his previously suspended sentence. He is simply
seeking clarification of his probationary status.
[2] Concluding that the trial court’s order revoking Burris’s probation and
accompanying abstract of judgment unambiguously terminate his probation, we
affirm.
Facts and Procedural History
[3] In August 2013, Burris pleaded guilty to Class B felony dealing in
methamphetamine. He was ordered to serve a ten-year sentence, with six years
executed and four years suspended to probation.
[4] On February 19, 2014, the trial court modified Burris’s placement from the
Department of Correction to the Greene County Community Corrections Work
Release Center. But Burris violated the work release center’s rules by testing
positive for bath salts, smoking on the premises, and disobeying staff orders.
Therefore, the trial court modified his placement back to the Department of
Correction. Burris served the remainder of his six-year executed sentence and
was then released to probation.
[5] After two positive tests for synthetic cannabinoids in September and October
2016, the State filed a petition to revoke Burris’s suspended sentence. Burris
tested positive for synthetic cannabinoids for a third time in December 2016.
On February 7, 2017, Burris was arrested for possessing a controlled substance
and paraphernalia, and resisting law enforcement.
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[6] Burris and the State reached an agreement on the probation violations, and the
trial court held a revocation hearing on April 13, 2017. Burris admitted that he
violated the terms and conditions of his probation by using illegal substances. In
exchange, the State dismissed the February 2017 possession and resisting
charges.
[7] The trial court issued an order revoking Burris’s probation and ordering him to
serve his previously suspended four-year sentence in the Department of
Correction “until such sentence is served with good time credit.” Appellant’s
App. Vol. II, p. 188. The court also ordered Burris to participate in the
purposeful incarceration program, and stated that he could petition for
modification of his sentence upon successful completion of that program. The
revocation order states that Burris’s “probation shall be terminated as
unsuccessful upon his release from custody.” Id. The abstract of judgment
orders Burris incarcerated for four years executed in the Department of
Correction and states that he is not to be returned to the court for probation at
the completion of his sentence. Burris appeals and seeks clarification of his
probationary status.
Discussion and Decision
[8] Burris argues that the sentencing order and abstract of judgment contain
conflicting statements leading to confusion as to whether Burris is still on
probation. He claims that “terminating probation at an uncertain future date [is
not] consistent with the statutory requirement that the court advise the
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probationer of all of the terms of probation.”1 Appellant’s Br. at 4. Therefore,
Burris asks us to remand this case to the trial court with instructions to “enter a
new order declaring whether his probation has already been revoked or
terminated.” Id. at 16.
[9] Burris admitted that he violated the conditions of his probation. Therefore, the
trial court was statutorily authorized to 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(h). The trial court revoked Burris’s probation and ordered
him to serve the entirety of his previously suspended four-year sentence in the
Department of Correction.
[10] The order revoking his probation states that Burris’s “probation shall be
terminated as unsuccessful upon his release from custody.” Appellant’s App.
Vol. II, p. 188. The abstract of judgment orders Burris to serve four years
1
Ind. Code section 35-38-2-1(a) states that the when a person is placed on probation the court shall “specify
in the record the conditions of the probation[.]”
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executed in the Department of Correction and specifically states that Burris will
not be returned to the court for probation upon the completion of his sentence.
[11] The order and abstract of judgment unambiguously provide that Burris’s
probation was revoked, and as a result, he must serve four years executed in the
Department of Correction. For this reason, we see no reason to remand this
case to the trial court for clarification. Burris is serving an executed sentence
and is no longer on probation.
[12] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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