Opinion
24A-CR-1065
10-18-2024
Glen Downs, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Amanda O. Blackketter Blackketter Law, LLC Shelbyville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Decatur Superior Court The Honorable Matthew D. Bailey, Judge Trial Court Cause No. 16D01-1903-F5-000404
ATTORNEY FOR APPELLANT
Amanda O. Blackketter
Blackketter Law, LLC
Shelbyville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
Judges Pyle and Weissmann concur.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Glen Downs pled guilty to four charges and was given a sentence of 2,190 days-730 days of this sentence were to be served on home detention while the remaining 1,460 days were suspended to probation. After Downs completed home detention but while still on probation, he was charged with a new criminal offense, and the State filed a petition to revoke his probation. Downs admitted to the new criminal offense, and the trial court executed 900 days of Downs' suspended sentence. Downs now appeals and presents a single issue for our review: Whether the trial court abused its discretion by ordering him to serve 900 days of his suspended sentence.
[¶2] We affirm.
Facts and Procedural History
[¶3] On June 16, 2020, Downs pled guilty to operating a vehicle after forfeiture of license for life as a Level 5 felony, resisting law enforcement as a Level 6 felony, possession of a controlled substance as a Class A misdemeanor, and operating a vehicle while intoxicated as a Class C misdemeanor. The trial court imposed a total sentence of 2,190 days, with 730 days to be served on home detention and the remaining 1,460 days suspended to probation. Downs completed his home detention on July 30, 2022.
[¶4] On July 10, 2023, the State charged Downs with operating a vehicle after forfeiture of license for life as a Level 5 felony and unlawful possession of a legend drug as a Level 6 felony. On November 27, 2023, the State filed a petition to revoke Downs's probation, alleging that Downs violated the terms of his probation by (1) being charged with a new offense and (2) failing to notify probation of his contact with law enforcement.
[¶5] On April 16, 2024, the trial court held a fact-finding hearing on the State's petition. Downs admitted to unlawful possession of a legend drug. The trial court accepted Downs's admission and ordered 900 days of his suspended sentence to be served in the DOC. Downs now appeals.
Discussion and Decision
[¶6] Downs claims the trial court erred in revoking his probation. "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). We review probation revocations and sanctions for abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt, 878 N.E.2d at 188). "An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law." Id. (internal citation omitted) (citing State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008)).
[¶7] The trial court conducts a two-step process in determining whether to revoke a defendant's probation: "First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation." Heaton, 984 N.E.2d at 616 (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)). Downs challenges only the trial court's sanction, arguing the trial court abused its discretion by ordering him to serve 900 days of his suspended sentence.
[¶8] Once the trial court determines a violation has occurred it may:
(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 year beyond the original probationary period; or (3) order execution of all or part of the sentence that was suspended at the time of initial sentencing.Utley v. State, 167 N.E.3d 777, 783 (Ind.Ct.App. 2021) (citing Ind. Code § 35-38-2-3(h)). To determine if the trial court issued an appropriate sanction, we look to the "severity of the defendant's probation violation." Heaton, 984 N.E.2d at 618. Additionally, we will look to the defendant's criminal history when reviewing whether a sanction is appropriate. See Utley, 167 N.E.3d at 784.
[¶9] On appeal, Downs claims that his violation was not severe, but we are unpersuaded by this claim. Here, Downs admitted to possession of a legend drug as a Level 6 felony. We agree with the trial court's conclusion that committing a felony offense "is the most serious violation of probation that a person can commit." Tr. Vol. II at 26. Additionally, we note that Downs admitted to driving a vehicle, even though his license remained suspended, on the date he was in possession of the legend drug. Making it worse, Downs tried to explain to the arresting officer that he had permission to drive. It cannot be overlooked that Downs was on probation for operating a vehicle after forfeiture of license for life. Downs has a long history of traffic-related offenses, including three convictions for operating while intoxicated which resulted in the forfeiture of his driver's license in 2008. Considering the present offense and Downs's criminal history, we conclude that the trial court did not abuse its discretion in ordering Downs to serve 900 days of his suspended sentence.
Affirmed.
Pyle, J., and Weissmann, J., concur.