Micah Ormsby v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Aug 26 2016, 6:16 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
regarded as precedent or cited before any
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
Evan K. Hammond Gregory F. Zoeller
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Micah Ormsby, August 26, 2016
Appellant-Defendant, Court of Appeals Cause No.
27A02-1511-CR-1965
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1209-FD-209
Barnes, Judge.
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Case Summary
[1] Micah Ormsby appeals the trial court’s decision revoking his probation
following his admission that he violated his probation. We dismiss.
Issue
[2] Ormsby raises one issue, which we restate as whether the trial court abused its
discretion by revoking Ormsby’s probation based on Ormsby’s admission that
he violated his probation because of new criminal charges being filed against
him in Florida.
Facts
[3] On April 12, 2013, pursuant to a written plea agreement, Ormsby pled guilty in
Grant County to Class D felony domestic battery in the presence of a child.
Ormsby was sentenced to three years with 180 days executed and the remainder
suspended to supervised probation.
[4] On August 12, 2013, the State filed a petition to revoke Ormsby’s probation,
alleging that he had violated the terms and conditions of his probation by
committing a new crime of Class A misdemeanor false informing and by
violating his curfew. On December 31, 2013, the State filed an amended
petition to revoke probation. On July 22, 2014, Ormsby admitted to violating
the conditions of his probation. The trial court ordered Ormsby to serve six
months of his previously-suspended sentence and, upon completion of this
term, ordered him to return to probation.
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[5] On August 18, 2015, the State filed a second Petition for Revocation of
Probation alleging that, while on probation, Ormsby committed and was
charged with the crimes of burglary of a conveyance and grand theft in Florida.
On October 19, 2015, Ormsby admitted to violating his probation. Based on
Ormsby’s admission, the trial court revoked Ormsby’s probation and ordered
him to serve the remainder of his previously-suspended sentence in the Grant
County Jail. Ormsby now appeals.
Analysis
[6] Ormsby argues that the trial court abused its discretion when it revoked his
probation and ordered him to serve the remainder of his previously-suspended
sentence. “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). “The trial court determines the conditions of probation and may
revoke probation if the conditions are violated.” Id.[7] Proof of a single violation of the conditions of a defendant’s probation is
sufficient to support a trial court’s decision to revoke probation. Hubbard v.
State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). Upon a finding of a probation
violation, a trial court 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; and (3) order execution of all or part of the sentence that
was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g). “If
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there is substantial evidence of probative value to support the trial court’s
conclusion that a probationer has violated any condition of probation, we will
affirm its decision to revoke probation.” Braxton v. State, 651 N.E.2d 268, 270
(Ind. 1995).
[8] We first address the State’s argument that Ormsby’s appeal should be dismissed
because the proper way to challenge the revocation of his probation is by a post-
conviction relief proceeding, and not a direct appeal, which Ormsby employs in
this case. “[Under] Indiana law an error premised upon a guilty plea must be
brought by a petition for post-conviction relief.” Huffman v. State, 822 N.E.2d
656, 660 (Ind. Ct. App. 2005). In Huffman, we dismissed an appeal challenging
a probation revocation after the defendant pled guilty to a violation. Id.[9] Ormsby specifically contends that, although he admitted to violating the terms
of his probation based on new criminal charges being filed against him in
Florida, he did not admit that he committed those offenses. During Ormsby’s
hearing on a petition of revocation, Ormsby admitted twice to violating his
probation.
The Court: You’re going to admit that you violated the terms of
your probation but you have no agreement as to the disposition
or sentence. Is that right?
The Defendant: Yes your Honor.
Tr. p. 5
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The Court: Okay. And, uh, you’re admitting that you have, in
fact, violated the terms of your probation here today. Correct?
The Defendant: Yes your Honor.
Id. at 9.
[10] As in Huffman, Ormsby admitted to violating his probation and cannot
challenge the revocation on direct appeal. This issue is more properly presented
by way of a petition for post-conviction relief.
Conclusion
[11] Ormsby cannot challenge the revocation of his probation on direct appeal given
his admission that he violated his probation. We dismiss.
[12] Dismissed.
Vaidik, C.J., and Mathias, J., concur.
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