James A. Pequignot, Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 25 2017, 8:30 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James A. Pequignot, Jr., August 25, 2017
Appellant-Defendant, Court of Appeals Case No.
02A05-1703-CR-531
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1601-F6-8
Barnes, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 1 of 6
[1] James Pequignot, Jr., appeals the trial court’s decision revoking his probation
and ordering him to serve the remainder of his previously-suspended sentence
in the Department of Correction (“DOC”). We affirm.
Issue
[2] Pequignot raises one issue, which we restate as whether the trial court abused
its discretion by requiring him to serve the remainder of his previously-
suspended two-year sentence in the DOC as opposed to an alternative
placement.
Facts
[3] On July 21, 2015, Pequignot entered a Lowes home improvement store in Allen
County, Indiana, and stole a roll of wire valued at $161.00. Pequignot had a
prior conviction for Class D felony theft from 1995. Pequignot was charged
and pled guilty to Level 6 felony theft with a prior conviction for theft. He was
sentenced to two years suspended to probation. He started his two-year term of
probation on February 25, 2016. On April 29, 2016, the State filed a petition to
revoke Pequignot’s probation, alleging that he did not successfully complete
community control and failed to complete home detention intake.
[4] On May 23, 2016, while still on probation but after the petition to revoke his
probation had been filed, Pequignot was involved in an altercation with the
police. Pequignot was driving, and a police officer initiated a traffic stop.
Pequignot eventually stopped his vehicle but then drove away from the officer,
stopped his vehicle a second time, and exited the vehicle and fled on foot.
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 2 of 6
Pequignot was apprehended but resisted officers’ attempts to take him into
custody. Pequignot’s blood alcohol level was found to be above the legal limit.
Based upon the incident, on May 27, 2016, Pequignot was charged with two
counts of Level 6 felony resisting law enforcement, Class A misdemeanor
resisting law enforcement, Class A misdemeanor operating a vehicle while
intoxicated, and Class C misdemeanor operating a vehicle with .08 or more
alcohol concentration equivalent in blood or breath.
[5] Pequignot pled guilty to the new criminal charges. An amended petition to
revoke his probation was filed on June 2, 2016. The trial court took
Pequignot’s guilty plea under advisement and placed him in a drug court
program.
[6] Pequignot entered the drug court program on July 11, 2016. While in the
program, he missed three drug screens; he provided three diluted drug screens;
he had a positive drug screen for alcohol and cocaine in August 2016; he failed
to complete transitional living; and he failed to appear in court when required.
Pequignot absconded from the program and the jurisdiction for a period of four
months.
[7] The State filed a petition to terminate Pequignot’s participation in the drug
court program. Pequignot admitted to the allegations in the petition and in the
amended petition for probation revocation. On January 3, 2017, the trial court
found that Pequignot violated the terms of the drug court program and revoked
him from the program. On February 8, 2017, the trial court revoked
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 3 of 6
Pequignot’s probation and ordered the remainder of his previously-suspended
two-year sentence to be served in the DOC. Pequignot now appeals.
Analysis
[8] Pequignot argues that the trial court abused its discretion by ordering him to
serve the remainder of his previously-suspended two-year sentence for theft in
the DOC as opposed to an alternative placement such as home detention at a
halfway house. In general, we review a challenge to a trial court’s sentence for
an abuse of discretion. Adams v. State, 960 N.E.2d 793, 796 (Ind. 2012) (citing
Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218(Ind. 2007)). “An abuse of discretion occurs when the decision clearly
contravenes the logic and effect of the facts and circumstances before the
court.” Id. at 796-97. Likewise, a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). A defendant is not entitled to
serve a sentence in either probation or a community corrections program. Cox
v. State, 706 N.E.2d 547, 549 (Ind. 1999). Rather, placement in either is a
matter of grace and a conditional liberty that is a favor, not a right. Id.[9] Pequignot argues that his placement in the DOC was an abuse of discretion
because a “report had been filed indicating that he was eligible for placement at
[a halfway house] and he requested that the Court allow him that opportunity.”
Appellant’s Br. p. 11. He maintains that “it was unreasonable for the Court to
deny him the opportunity to complete the executed portion of his sentence
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 4 of 6
through alternative placement on detention at the [halfway house].” Id.However, approximately three months after he started probation, Pequignot
committed new criminal offenses. Approximately six months after starting
probation, Pequignot failed to submit to three urine drug screens, tested positive
for alcohol and cocaine on one urine drug screen, and provided three diluted
drug screens. While enrolled in the drug court program, Pequignot absconded
from the program and the jurisdiction for a period of four months. Although
Pequignot suffers from substance abuse, as the trial court explained to him at
his sentencing hearing:
You’ve been given the benefit of every program that’s available
here in Allen County: Probation, jail, parole, the Department of
Correction, the Alcohol Abuse Deterrent Program, the Alcohol
Countermeasures Program, work release, home detention,
Community Transition Program, as well as the Drug Court
Program; . . . You’ve had multiple attempts at treatment, your
probation’s been revoked four times, suspended sentences
modified three times, suspended sentences revoked twice. Your
parole’s been revoked once and work release placement revoked
once; . . . And I note you’ve had, again, multiple attempts at
treatment through various agencies, both here in Allen County
and in Indianapolis at Fairbanks . . . in 1997; Charter Beacon,
Fort Wayne, Indiana, in 1999; Washington House in 2004, as
well as other efforts at rehabilitation.
Tr. pp. 20-21. Under these circumstances, Pequignot has not established that
the trial court abused its discretion in ordering him to serve the remainder of his
two-year sentence for theft in the DOC.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 5 of 6
[10] The trial court did not abuse its discretion by revoking Pequignot’s probation
and ordering him to serve the remainder of his previously-suspended two-year
sentence in the DOC. We affirm.
[11] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A05-1703-CR-531 | August 25, 2017 Page 6 of 6