Brian K. Ellison v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 09/06/2017, 11:05 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Devon M. Sharpe Curtis T. Hill, Jr.
Jenner, Pattison, Sutter & Wynn, LLP Attorney General of Indiana
Madison, Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian K. Ellison, September 6, 2017
Appellant-Defendant, Court of Appeals Case No.
69A04-1705-CR-986
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Gary L. Smith,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
69D01-1401-FD-11
Najam, Judge.
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Statement of the Case
[1] Brian K. Ellison appeals the trial court’s revocation of his probation. Ellison
raises a single issue for our review, which we restate as whether the trial court
erred when it rejected Ellison’s plea agreement but then accepted Ellison’s
ensuing admissions in open court to the State’s allegations.
[2] We affirm.
Facts and Procedural History
[3] On November 19, 2014, Ellison pleaded guilty to theft, as a Class D felony.
The trial court accepted Ellison’s guilty plea and sentenced him to three years,
all of which the court suspended to probation. The conditions of Ellison’s
probation included prohibitions against the commission of additional crimes
and the use of alcohol. On August 1, 2016, the State filed a notice of probation
violation against Ellison. According to the State, while on probation Ellison
had committed the new offense of operating a motor vehicle while intoxicated.
[4] The trial court held a hearing on the State’s notice on April 7, 2017. At that
hearing, the parties tendered a proposed plea agreement to the trial court in
which Ellison would have admitted to the probation violation and, in exchange,
the court would have ordered Ellison to serve 730 days on home detention.1
But the court informed Ellison’s counsel that it was “reluctant to accept [the]
1
Ellison has not included a copy of the agreement in his Appellant’s Appendix. See Ind. Appellate Rule 50.
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agreement” in light of Ellison’s prior felony conviction and other notices of
probation violations that had been filed against Ellison. Tr. at 2. Ellison’s
counsel informed Ellison of the trial court’s position, and Ellison informed the
court that he “want[ed] to proceed even under those circumstances.” Id. at 3.
[5] The trial court then placed Ellison under oath and informed him of his rights
and the consequences of waiving those rights, and Ellison informed the court
that he understood its advisements. In particular, the court stated:
Ok. I want to make something very clear to you Mr. Ellison and
I told this to the attorneys, but I want to make sure that you are
aware of this as well. Any, in this particular situation, any admission
or agreement on a revocation is much like an open plea to the court and it
would be a recommendation only, so as I explained to the attorneys
and it is my understanding that you are aware of this, but I want
to make it clear on the record. If you choose to proceed today,
that is fine, you have that option. The attorneys will tell me what
their recommendation is, what they have agreed to recommend
to the court for disposition or the sentence on this particular
revocation. That is not a binding recommendation to the [c]ourt. It is
purely left to the [c]ourt’s discretion, so the [c]ourt could do anything
within the realm of possible sentences here. One of those is the [c]ourt
could allow you to admit and the [c]ourt could accept the
recommendation as the attorneys have made specifically and
sentence you exactly as they have agreed and how you have
agreed. The [c]ourt could say I believe this sentence i[s]
inappropriate and sentence you to a more lenient sentence if I
believed that was appropriate and the [c]ourt could, if I believed
it was more appropriate based upon the circumstances, sentence
you to a more harsh sentence as well. So I want you to understand
before we proceed that is a recommendation and a recommendation only
and it is not binding on the [c]ourt. So do you understand that?
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Id. at 4-5 (emphases added). Ellison responded, “Yes sir” to the court’s
question. Id. at 5.
[6] Ellison admitted that he had operated a vehicle while intoxicated as alleged in
the State’s notice of probation violation. The court then revoked Ellison’s
probation and ordered him to serve the balance of his previously suspended
sentence. This appeal ensued.
Discussion and Decision
[7] On appeal, Ellison asserts that the trial court erred when it revoked his
probation and ordered him to serve the balance of his previously suspended
sentence. As the Indiana Supreme Court has explained:
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the
trial court to determine probation conditions and to revoke
probation if the conditions are violated. Id. In appeals from trial
court probation violation determinations and sanctions, we
review for 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., or when the trial court misinterprets
the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
(“An abuse of discretion may also be found when the trial court
misinterprets the law or disregards factors listed in the controlling
statute.”)).
Probation revocation is a two-step process. First, the trial court
must make a factual determination that a violation of a condition
of probation actually occurred. Woods v. State, 892 N.E.2d 637,
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640 (Ind. 2008). Second, if a violation is found, then the trial
court must determine the appropriate sanctions for the violation.
Id.
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
[8] According to Ellison, the trial court “should have either accepted or rejected the
parties’ agreement and been bound by its terms. Instead, the Trial Court
violated Ellison’s due process [rights] by accepting his admission and
sentencing [him] wildly in excess of the agreement.” Appellant’s Br. at 11.
Ellison continues: “the Trial Court did not accept or deny the sentencing
recommendation in the parties’ joint motion . . . . Instead, the Trial Court
accepted the agreement and Ellison’s admission without also accepting the
sentence recommendation.” Id. at 11-12 (emphases added). We reject Ellison’s
erroneous assessment that the trial court accepted, and was therefore bound by,
the proposed plea agreement. The record unambiguously shows that the trial
court declined to accept Ellison’s plea agreement. The record is equally clear
that Ellison was aware of that fact and was advised of his rights before he
personally agreed to proceed despite the court’s rejection of the proposed plea
agreement.
[9] Insofar as Ellison argues in the alternative that the court was required to hold a
fact-finding hearing after it rejected the proposed plea agreement, we cannot
agree. After being advised of his rights, Ellison admitted to the alleged
violations in open court, which rendered a fact-finding hearing unnecessary.
See Ind. Code § 35-38-2-3(e) (2017). And Ellison does not suggest on appeal
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that his admissions were not made knowingly, voluntarily, or intelligently.
Accordingly, Ellison’s arguments on appeal are without merit, and we affirm
the trial court’s judgment.
[10] Affirmed.
Kirsch, J., and Brown, J., concur.
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