Opinion
24A-CR-106
11-14-2024
Robert S. Kumli, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dearborn Circuit Court The Honorable F. Aaron Negangard, Judge Trial Court Cause No. 15C01-1708-F4-23
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE.
Case Summary
[¶1] Robert Kumli appeals the trial court's order revoking his probation and ordering him to serve seven years of his previously suspended sentence in the Indiana Department of Correction ("DOC"). Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[¶2] In 2018, Kumli pleaded guilty to Level 4 felony dealing in a narcotic drug and was sentenced to twelve years with ten years suspended to probation. Kumli was to serve the executed portion of his sentence on in-home detention.
[¶3] Two weeks after being sentenced, Kumli violated the terms of his in-home detention by failing a pill count. The trial court converted 626 days of his inhome detention to incarceration in the DOC. After completing his executed sentence, Kumli was released on probation. In 2022, Kumli admitted to violating his probation terms by testing positive for narcotics. The trial court revoked two years of Kumli's suspended sentence.
[¶4] After serving time in the DOC, Kumli returned to probation for eight years. Kumli's probation officer, Jennifer Benson, met with him shortly after his release from the DOC. Benson gave Kumli information on recovery resources available in the area. Kumli told Benson he was not taking any medication at the time. He called Benson three days later to tell her he went to the doctor and received a prescription for several medications. Within days of his conversation with Benson, Kumli was charged with operating a vehicle while under the influence of controlled substances. The State then alleged Kumli violated the terms of his probation by committing this offense. Kumli admitted to the violation and was given a furloughed sentence to seek in-patient treatment services. He successfully completed two in-patient treatment programs and a detoxification program during his furloughed sentence.
[¶5] After his release from treatment, Kumli underwent emergency gall bladder surgery and was prescribed pain medication. He also had several other prescription medications in his possession at the time. After Kumli's surgery, the State alleged he violated his probation for a third time by failing a pill count.
[¶6] Kumli admitted he failed to take his medication as prescribed. At the dispositional hearing, the trial court considered both the earlier violation for committing the offense of operating a vehicle while under the influence of controlled substances and the failed pill count. Kumli testified he failed the pill count because he had flushed his medication down the toilet at the advice of his counselors. The trial court noted Kumli had the opportunity to tell his field officer and probation officer he was struggling to take his medication as prescribed, but did not do so. Given Kumli's multiple prior probation violations, the court revoked Kumli's probation and ordered him to serve seven years of his previously suspended sentence in the DOC.
The trial court did not abuse its discretion in ordering Kumli to serve seven years of his previously suspended sentence in the DOC.
[¶7] Kumli argues the trial court abused its discretion when it ordered him to serve seven years of his previously suspended sentence in the DOC. The trial court may revoke probation if a probationer violates a term of his probation during his probationary period. Ind. Code § 35-38-2-3(a)(1) (2015). Probation is a matter of grace, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). We review appeals of probation sanctions for abuse of discretion, reversing only if the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶8] "Probation revocation is a two-step process." Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the trial court must find the probationer violated the conditions of the probation. Id. Second, the court must "determine if the violation warrants revocation of the probation." Id. If it does, the court may then 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 the initial sentencing." I.C. § 35-38-2-3(h).
[¶9] Kumli admitted to violating the conditions of his probation by committing a criminal offense and failing a pill count. But Kumli claims he "took responsibility" for the conduct leading to his probation violations and has made "substantial efforts" to live a drug-free and law-abiding life. Appellant's Br. at 8. He points to his participation in several rehabilitative programs as evidence of these efforts and characterizes his emergency gall bladder surgery as merely a temporary setback. Essentially, Kumli argues the trial court's order was too severe in light of his efforts to resolve his dependency issues and his willingness to take accountability for his actions.
[¶10] We commend Kumli for making positive strides in addressing his substance abuse, and we encourage him to keep doing so. But we cannot overlook the trial court's leniency on several prior occasions. Since his initial conviction, Kumli has violated the terms of his in-home detention and probation multiple times. Because Kumli has repeatedly squandered grace extended to him by the trial court, we cannot say the trial court abused its discretion by ordering Kumli to serve seven years of his previously suspended sentence in the DOC. See Prewitt, 878 N.E.2d at 188 (concluding the trial court "acted well within its discretion" in ordering defendant to execute a portion of his previously suspended sentence due to, among other things, defendant's multiple probation violations).
Conclusion
[¶11] The trial court did not abuse its discretion in ordering Kumli to serve seven years of his previously suspended sentence in the DOC.
[¶12]Affirmed.
Felix, J., and DeBoer, J., concur.