Opinion
24A-CR-892
12-11-2024
David A. Smith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brandon M. Townsend Law Office of Brandon Townsend Anderson, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Mark K. Dudley, Judge Trial Court Cause No. 48C06-2009-F5-2075.
ATTORNEY FOR APPELLANT Brandon M. Townsend Law Office of Brandon Townsend Anderson, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana.
Bailey and Bradford, Judges concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] David A. Smith ("Smith") appeals from the trial court's order revoking his probation. He raises one issue for our review: whether the trial court abused its discretion when it revoked his previously suspended sentence and ordered him to serve the entirety of that sentence in the Indiana Department of Correction ("the DOC"). We affirm.
Facts and Procedural History
[¶2] On September 3, 2020, the State charged Smith with Count I: robbery, a Level 5 felony; Count II: strangulation, a Level 6 felony; Count III: domestic battery, a Class A misdemeanor; and Count IV: interference with the reporting of a crime, as a Class A misdemeanor. Appellant's App. Vol. II pp. 17-19.
[¶3] On November 6, 2020, Smith and the State entered into a plea agreement under which (1) Smith would admit to all the charges and (2) the aggregate executed portion of his sentence would be capped at three and a half years in the DOC. Id. at 71. Smith pleaded guilty pursuant to the plea agreement, and on December 11, 2020, the trial court imposed an aggregate sentence of five years in the DOC that consisted of three years executed and two years suspended to probation. Id. at 78.
[¶4] On September 14, 2023, Smith was released from incarceration and began formal reporting for probation. Id. at. 165. On October 11, 2023, the State filed a petition to revoke Smith's probation, alleging Smith committed new criminal offenses that were the subject of pending charges in Ripley County, Indiana. The Stated alleged Smith violated a condition of his probation as follows:
a) Not to violate the laws of Indiana or the U.S. and failure to behave well in society: On/about 09/26/23 you committed the following new criminal offense; Ct. I: Strangulation, Level 6 Felony; Ct. II: Intimidation, Level 6 Felony; Ct. III: Residential Entry, Level 6 Felony as filed in Ripley Superior Court under cause number 69D01-2309-F6-000093.Id.
[¶5] Smith denied the allegations and on March 15, 2024, the trial court held an evidentiary hearing on the State's petition. At the contested hearing the State presented the testimony of Sarah Runkel ("Runkel") and Deputy Marshall Alex Wilhem of the Town of Osgood ("Deputy Marshall Wilhelm") in support of the allegations. Runkel testified at the hearing that on the evening of September 24, 2023, she found Smith in the bathroom of her trailer where he had "cut himself on his leg . . . and then tried to strangle himself with a piece of cloth he ripped off his shirt." Tr. Vol. I p. 22. She cut the cloth from his neck. When she left the bathroom, Smith followed her into her bedroom while holding a phone cord in his hand. Smith then "attempt[ed] to get [the cord] around [her] neck and [she] smacked it out of his hand." Id. After smacking the cord from Smith's hand, she reached under the bed and grabbed a hammer. Id. Smith then fled the bedroom. Runkel called her mother and uncle, who then called the police. Id. at 23. As Smith was leaving the trailer, he told Runkel that "he was in a gang with . . . and that he was gonna [sic] have his gang come and murder [her] and [her] family." Id. Police responded to the scene, as did paramedics, who administered oxygen to Runkel because she was having a panic attack. Id. When Deputy Marshall Wilhelm arrived, he discovered a piece of a t-shirt, a hammer, a phone cord, broken glasses belonging to Runkel, and damage to Runkel's bedroom doorframe. Id. at 46.
[¶6] The following morning, Runkel unlocked the door to her trailer, expecting her sister to come over. Id. at 23. Runkel noticed the door open and thought it was her sister. Instead, it was Smith, who entered the trailer, hitting her with the door. After pushing through the door, Smith attempted to strangle Runkel. Id. She stated that this violent altercation occurred for "maybe thirty (30) seconds because [she] was fighting him and [her] sister came through the door right after that." Id. at 25. At that point, Smith fled the trailer. While fleeing, Smith cursed at Runkel and threatened her, stating that if he went to jail, he would "kill [her]" when he got out. Id. Runkel called Deputy Marshall Wilhelm directly and asked him to return to her residence. Id. at 26. At the hearing, Deputy Marshall Wilhelm testified that when he returned, he noticed "a small cut on [Runkel's] thigh and additional bruising around that area." Id. at 48. He also noticed "scratches to [Runkel's] neck and some bruising to her neck." Id.
[¶7] At the conclusion of the hearing, the trial court found by a preponderance of evidence that "the State . . . met its burden as to strangulation, intimidation, and residential entry." Tr. Vol. I p.70. In light of Smith's new criminal conduct, the trial court revoked the two-year portion of Smith's sentence that was previously suspended to probation and ordered him to serve that time in the DOC. Smith now appeals.
Discussion and Decision
[¶8] Smith does not dispute the trial court's finding that he violated his probation. Rather, Smith challenges the sanction imposed by the trial court, alleging that the trial court abused its discretion in revoking the entirety of his previously suspended sentence and ordering him to serve that time in the DOC.
[¶9] Pursuant to Indiana Code section 35-38-2-3(h), if the court determines that a person violated a condition of probation, the court may impose one 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.
[¶10] As to the selection of a sanction, our Supreme Court has explained that, because "[p]robation is a matter of grace left to trial court discretion, not a right which a criminal defendant is entitled," trial courts should have "considerable leeway" in deciding how to proceed when facing a violation of probation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (noting 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"). "[W]e review a trial court's decision to revoke probation and a trial court's sentencing decision in a probation revocation proceeding for an abuse of discretion." Sanders v. State, 825 N.E.2d 952, 956 (Ind.Ct.App. 2005). A trial court's decision for imposing sanctions for probation violations is reviewable using the abuse of discretion standard. Castillo v. State, 67 N.E.3d 661, 664 (Ind.Ct.App. 2017). "An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances." Prewitt, 878 N.E.2d at 188 (citing Guillen v. State, 829 N.E.2d 142, 145 (Ind.Ct.App. 2005)).
[¶11] Smith argues that the trial court abused its discretion by revoking the entirety of his previously suspended sentence and requiring him to serve that time in the DOC. More specifically, Smith argues that the trial court should have instead placed him on home detention or in a work release program. "Both probation and community corrections programs serve as alternatives to commitment to the DOC and both are made at the sole discretion of the trial court." Johnson v. State, 62 N.E.3d 1224, 1229 (Ind.Ct.App. 2016).
[¶12] The trial court's decision to impose an executed sentence at the DOC as a sanction for Smith's probation violation, rather than continued community placement, is overwhelmingly supported by the record. Within two weeks of being placed on formal probation for the commission of violent offenses, Smith almost immediately re-offends upon release. Smith, again engaged in violence and threatened to kill Runkel if he went to jail. As we have previously explained: "Proof of a single violation is sufficient to permit a trial court to revoke probation." Hammann v. State, 210 N.E.3d 823, 832 (Ind.Ct.App. 2023) (citing Killebrew v. State, 165 N.E.3d 578, 582 (Ind.Ct.App. 2021)), trans. denied. Clearly Smith posed a threat to the community and any rehabilitation is best left to the DOC.
[¶13] The trial court's order revoking Smith's probation and imposing the balance of his suspended sentence was not an abuse of discretion.
[¶14] Affirmed.
Bailey, J. and Bradford, J., concur.