Douglas Flagle v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                     FILED
    regarded as precedent or cited before any                            Aug 29 2017, 9:26 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                               Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                          and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Donald R. Shuler                                         Curtis T. Hill, Jr.
    Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
    Goshen, Indiana
    Tyler G. Banks
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Douglas Flagle,                                          August 29, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    43A05-1704-CR-875
    v.                                               Appeal from the Kosciusko
    Superior Court
    State of Indiana,                                        The Honorable Joe V. Sutton,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    43D03-0907-FC-116
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017         Page 1 of 7
    Statement of the Case
    [1]   After Douglas Flagle (“Flagle”) admitted that he had violated his probation, the
    trial court revoked five and one-half years of his six-year suspended sentence.
    Flagle now contends that the trial court abused its discretion in revoking five
    and one-half years of his suspended sentence. Finding no error, we affirm the
    trial court’s judgment.
    [2]   We affirm.
    Issue
    Whether the trial court abused its discretion in revoking Flagle’s
    suspended sentence.
    Facts
    [3]   In July 2009, the State charged Flagle in Kosciusko County with non-support of
    a dependent as a Class C felony. The information alleged that Flagle had
    knowingly or intentionally failed to provide support to his dependent child,
    S.F., and that the amount of unpaid support was at least $15,000. In November
    2009, Flagle pled guilty to the charged offense pursuant to a written plea
    agreement. Flagle agreed that the amount of his unpaid child support was
    $21,175.00. Pursuant to the terms of the plea agreement, Flagle had ninety
    days to reduce his child support arrearage. If Flagle reduced his arrearage to
    $14,499.99 or less at the time of the sentencing hearing, judgment of conviction
    would be entered as a Class D felony and Flagle would be sentenced to a three-
    year suspended sentence. However, if Flagle’s arrearage was $15,000 or higher
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017   Page 2 of 7
    at the time of sentencing, judgment of conviction would be entered as a Class C
    felony and he would be sentenced to eight years in the Department of
    Correction. Two years of the eight-year sentence would be executed and six
    years would be suspended to probation. The plea agreement further provided
    that Flagle would not commit any criminal offenses. At the guilty plea hearing,
    the trial court took the plea agreement under advisement and scheduled a
    sentencing hearing for February 2010. Flagle was released from custody on his
    own recognizance pending the sentencing hearing.
    [4]   Flagle failed to appear at the February 2010 sentencing hearing and therefore
    failed to review or sign the terms and conditions of his probation. A warrant
    was subsequently issued for his arrest. In July 2011, the Kosciusko County trial
    court was informed that Flagle, who had just been sentenced for seven felony
    convictions, was in custody in Elkhart County. The Kosciusko County trial
    court rescheduled the hearing for which Flagle had failed to appear, and in
    August 2011, the trial court approved the Kosciusko County plea agreement
    and imposed a judgment of conviction for Class C felony non-support of a
    dependent. Pursuant to the terms of the plea agreement, the trial court also
    sentenced Flagle to eight (8) years, with two (2) years executed and six (6) years
    suspended to probation. This sentence was ordered to run consecutively to the
    sentence for the Elkhart County convictions.
    [5]   At some point in 2014, after he had served the executed portion of his sentence,
    Flagle was placed in Elkhart County’s work-release program. Flagle had
    apparently been serving in the work-release program for almost a year when, in
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017   Page 3 of 7
    April 2015, he failed to return to the work-release facility. In May 2015,
    Elkhart County charged Flagle with Level 6 felony failure to return to lawful
    detention. Flagle turned himself in to police in Michigan five months later.
    [6]   Based upon that charge, in February 2016, Flagle’s Kosciusko County
    probation officer filed a petition to revoke Flagel’s probation for the 2011 non-
    support of a dependent conviction. The petition also alleged that Flagle had
    violated his probation by failing to sign the terms and conditions of his
    Kosciusko County probation.
    [7]   At the March 2017 revocation hearing, Flagle explained that he had not
    reported to the probation department to review or sign the terms and conditions
    of his probation because he “was under the understanding that the reporting to
    the probation department was after that was all completed.” (Tr. 14). He
    stated that he did “not have an excuse for not reporting other than (inaudible).”
    (Tr. 14). Flagle further explained that he had failed to return to Elkhart
    County’s work release program because he had “had a little rebellious period
    and thought [he] would take advantage of it.” (Tr. 21). The evidence further
    revealed that Flagle’s child support arrearage was $51,407.08, and that his last
    child support payment in March 2016 had been for $17.00.
    [8]   Also at the hearing, the State argued as follows:
    [In February 2010], Mr. Flagle failed to appear for sentencing.
    The Court at that time issued a warrant for his arrest with [a]
    $100,000.00 surety bond. It appears that his disregard is not
    unique in this particular case based upon his own admission that
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017   Page 4 of 7
    he absconded for five months from . . . Community Corrections
    and actually had to turn himself back into Niles, Michigan. Um,
    the child support arrearage, as far as I know, has not been
    substantially diminished if at all. It was $57,000.00 at the time of
    his sentencing. We would ask the Court to revoke his probation,
    discharge him unsatisfactorily and order him to serve the six
    years, less an appropriate credit that the Court determines under
    the circumstances, um, for his acceptance of responsibility and
    his admission at an early stage of these proceedings.
    (Tr. 23).
    [9]    The trial court gave Flagle “a six[-]month cut for just being upfront and
    straight” about his probation violation. (Tr. 26). The trial court further revoked
    five and one-half years of Flagle’s previously suspended six-year sentence and
    ordered Flagle to serve this time in the Department of Correction. Flagle
    appeals.
    Decision
    [10]   Flagle argues that the trial court abused its discretion in revoking five and one-
    half years of his previously suspended sentence. He specifically contends that
    the trial court “impos[ed] a particularly severe sentence considering the
    relatively minor nature of the probation violation.” (Flagle’s Br. 11).
    [11]   Upon determining that a probationer has violated a condition of probation, the
    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(h)(3).
    “Once a trial court has exercised its grace by ordering probation rather than
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017   Page 5 of 7
    incarceration, the judge should have considerable leeway in deciding how to
    proceed.” Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). “If this discretion
    were not given to trial courts and sentences were scrutinized too severely on
    appeal, trial judges might be less inclined to order probation to future
    defendants.” 
    Id.
     As a result, we review a trial court’s sentencing decision from
    a probation revocation for an abuse of discretion. 
    Id.
     An abuse of discretion
    occurs where the decision is clearly against the logic and effect of the facts and
    circumstances. 
    Id.
    [12]   The record reveals that the trial court had an ample basis for its decision to
    revoke five and one-half years of Flagle’s previously suspended sentence.
    Significantly, in 2009, Flagle pled guilty to Class C felony non-support of a
    dependent. After being released on his own recognizance, he failed to both
    appear at a scheduled hearing and sign the terms and conditions of his
    probation. Over a year later, after being sentenced for seven felony convictions
    in a different county, Flagle attended the hearing in Kosciusko County, where
    he was sentenced to eight years with six years suspended. Thereafter, while
    serving in an Elkhart County work-release program, Flagle failed to return to
    the work-release facility. He was subsequently charged with another felony for
    failing to return to lawful detention. Five months later, he turned himself in to
    police in another state. At the time of the probation revocation hearing,
    Flagle’s child support arrearage was over $50,000, and he had not made a
    payment in the past year. Based on this evidence, we conclude that the trial
    court did not abuse its discretion when it revoked five and one-half years of
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017   Page 6 of 7
    Flagle’s previously suspended 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 Jones to serve thirty years of his previously-suspended
    sentence after he violated the terms and conditions of his probation). 1
    [13]   Affirmed.
    Riley, J., and Robb, J., concur.
    1
    Flagle further argues that even if the trial court did not abuse its discretion in ordering him to serve five and
    one-half years of his previously suspended sentence, his “placement at the Department of Corrections . . . is
    not appropriate.” (Flagle’s Br. 13). However, the two cases that he cites in support of this argument both
    involve direct appeals of a sentence. The Indiana Supreme Court has previously explained that Indiana
    Appellate Rule 7(B)’s inappropriate analysis “is not the correct standard to apply when reviewing a trial
    court’s actions in a post-sentence probation violation proceeding.” Jones v. State, 
    885 N.E.2d 1286
    , 1290 (Ind.
    2008). We therefore do not address this argument.
    Court of Appeals of Indiana | Memorandum Decision 43A05-1704-CR-875 | August 29, 2017                  Page 7 of 7
    

Document Info

Docket Number: 43A05-1704-CR-875

Filed Date: 8/29/2017

Precedential Status: Precedential

Modified Date: 4/17/2021