Shelby Bense v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 24 2019, 9:04 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
James A. Shoaf Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shelby Bense, April 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2780
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff Judge
Trial Court Cause No.
03D01-1706-CM-3624
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 1 of 6
Statement of the Case
[1] Shelby Bense (“Bense”) appeals the revocation of her probation, arguing that
the trial court abused its discretion by ordering her to serve her previously
suspended sentence. Concluding that there was no abuse of discretion, we
affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion by ordering Bense to
serve her previously suspended sentence.
Facts
[3] In June 2017, the State charged Bense with Class A misdemeanor conversion.
In January 2018, Bense entered into a plea agreement and pled guilty as
charged. The parties agreed that Bense would receive a one-year sentence
suspended to probation. The trial court accepted Bense’s guilty plea and
imposed the sentence set out in the plea agreement. As part of Bense’s terms of
probation, the trial court ordered her to obtain a substance abuse evaluation and
to follow the recommendations from the evaluation.
[4] Two months later, in March 2018, the State filed a notice of probation
violation, alleging that Bense had violated her probation by: (1) committing the
offense of possession of marijuana in Bartholomew County; (2) using
methamphetamine; (3) failing to go to a substance abuse evaluation; and (4)
associating with an individual who was on probation, parole, or involved in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 2 of 6
illegal activities. At the probation revocation hearing, Bense admitted that she
had violated her probation under allegations (2), (3), and (4) contained in the
revocation petition. The trial court allowed Bense to remain on probation and
extended her probationary period by ninety days. The trial court also ordered
Bense, who was pregnant, to “get into treatment immediately[.]” (App. Vol. 2
at 50).
[5] Shortly thereafter, in August 2018, the State filed a second notice of probation
violation, alleging that Bense had violated her probation by: (1) committing the
crimes of possession of heroin and possession of paraphernalia in Bartholomew
County; (2) failing to comply with substance abuse treatment; (3) failing to
report her new address; and (4) failing to report to probation. The trial court
held a probation revocation hearing in September 2018. Bense admitted that
she had violated her probation under allegations (2), (3), and (4) contained in
the second revocation petition. The trial court scheduled a dispositional
hearing for October 2018, but Bense failed to appear for that hearing. In
November 2018, the trial court held the dispositional hearing. At the beginning
of the hearing, Bense acknowledged that she had an active warrant out of
Marion County for a Level 6 felony possession of a controlled substance case.
The trial court revoked Bense’s probation and ordered her to serve the balance
of her previously suspended sentence in the Bartholomew County Jail. Bense
now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 3 of 6
Decision
[6] Bense argues that the trial court abused its discretion by ordering her to serve
her previously suspended sentence.
[7] Our supreme court has held that “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) (citing Sanders v. State, 825
N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied) (rejecting a defendant’s
argument that his probation violation sanction should be reviewed under the
inappropriate standard in Indiana Appellate Rule 7(B)). Probation serves as an
“alternative[] to commitment to the Department of Correction[,]” and is “made
at the sole discretion of the trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind.
1999), reh’g denied. A trial court determines the conditions of probation and
may revoke probation if the conditions are violated. Prewitt, 878 N.E.2d at 188;
see also IND. CODE § 35-38-2-3(a). Indeed, violation of a single condition of
probation is sufficient to revoke probation. Gosha v. State, 873 N.E.2d 660, 663
(Ind. Ct. App. 2007). Upon determining that a probationer has violated a
condition of probation, the trial court may “[o]rder execution of all or part of
the sentence that was suspended at the time of initial sentencing.” IND. CODE §
35-38-2-3(h)(3). “Once a trial court has exercised its grace by ordering
probation rather than incarceration, the judge should have considerable leeway
in deciding how to proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion
were not given to trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to future
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 4 of 6
defendants.” Id. As a result, we review a trial court’s sentencing decision from
a probation revocation for an abuse of discretion. Id. (citing Sanders, 825
N.E.2d at 956). An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id.[8] Bense asserts that the trial court abused its discretion by ordering her to serve
her previously suspended sentence and contends that the trial court should have
placed her in a community corrections program so that she could receive
substance abuse treatment. We disagree.
[9] The record reveals that the trial court had a sufficient basis for its decision to
order Bense to serve her previously suspended sentence. Here, as part of
Bense’s probation, she was required to get a substance abuse evaluation and to
follow the treatment recommendations. She did not do so. Within two months
of being placed on probation, she was charged with possession of marijuana,
and she admitted that she had violated probation—the first time—by using
methamphetamine, failing to go to a substance abuse evaluation, and
associating with an individual who was on probation, parole, or involved in
illegal activities. The trial court showed Bense leniency and allowed her to
continue on probation following these violations, and it ordered that Bense,
who at that time was pregnant, to immediately seek substance abuse treatment.
Bense, however, squandered this opportunity. Within three months, the State
filed a second probation revocation petition, alleging that Bense had: (1)
committed the crimes of possession of heroin and possession of paraphernalia;
(2) failed to comply with substance abuse treatment; (3) failed to report her new
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 5 of 6
address; and (4) failed to report to probation. Bense admitted that she had
violated probation under allegations (2), (3), and (4), and she admitted that she
had an active warrant out of Marion County for a Level 6 felony possession of
a controlled substance case. Based on the record before us, we conclude that
the trial court did not abuse its discretion by ordering Bense to serve her
previously suspended sentence. For the foregoing reasons, we affirm the trial
court’s revocation of Bense’s probation.
[10] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019 Page 6 of 6