Michael D. Webb v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 12 2016, 6:18 am
regarded as precedent or cited before any
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
Casey J. Lindeman Gregory F. Zoeller
Lindeman Law, LLC Attorney General of Indiana
Huntingburg, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Webb, December 12, 2016
Appellant-Defendant, Court of Appeals Case No.
19A01-1603-CR-515
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Mark R.
Appellee-Plaintiff. McConnell, Judge
Trial Court Cause No.
19C01-1408-F6-557
Mathias, Judge.
[1] The Dubois Circuit Court revoked Michael D. Webb’s probation and ordered
Webb to serve the eighteen-month balance of his previously suspended
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sentence. Webb appeals and claims that the trial court abused its discretion in
ordering him to serve the balance of his previously suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On August 7, 2014, Webb peeped into the window of a woman’s bedroom. The
woman saw Webb and knocked on the window. Webb fled but was quickly
apprehended and charged with Level 6 felony voyeurism. Webb pleaded guilty
and was sentenced to twenty-seven months of incarceration, with eighteen
months suspended to probation. One of the terms of his probation was not to
commit any additional crimes.
[4] On March 21, 2015, shortly after being released to probation, Webb was again
charged with Level 6 felony voyeurism. On March 24, 2015, the State filed a
petition to revoke Webb’s probation on grounds that he had committed another
crime, i.e., voyeurism. At a hearing held on January 15, 2016, Webb admitted
to violating the terms of his probation. At a dispositional hearing held on
February 5, 2016, the trial court heard testimony from Webb’s probation officer
and Webb. At the conclusion of the hearing, the trial court revoked Webb’s
probation and ordered him to serve the previously suspended eighteen months
of his sentence. Webb now appeals.
Standard of Review
[5] Webb does not contest the trial court’s finding that he violated the terms of his
probation, as he admitted to such. He instead argues that the trial court abused
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its discretion when it revoked his probation and ordered him to serve the
remainder of his previously suspended eighteen-month sentence.
[6] Our courts have long noted that probation is an alternative to incarceration and
is granted in the sole discretion of the trial court. Davis v. State, 743 N.E.2d 793,
794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a defendant is not entitled
to serve a sentence on probation; instead, probation is a matter of grace and a
conditional liberty that is a favor, not a right. Id.
[7] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination that a
violation of probation has occurred. Id. Where, as here, a probationer admits to
the violation, the court can proceed to the second step of the inquiry and
determine whether the violation warrants revocation. Id.
[8] Upon revocation of probation, a trial court may 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 year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012)
(citing Ind. Code § 35-38-2-3(h)(l) – (3)).
[9] We review a trial court’s sentencing decision following a probation violation for
an abuse of discretion. Alford, 965 N.E.2d at 135 (citing Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007)). An abuse of discretion occurs where the trial
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court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id.
Discussion and Decision
[10] Webb claims that several factors should have been considered by the trial court
as weighing in favor of ordering him to serve the balance of his sentence in a
community corrections program. Specifically, Webb notes that he admitted to
violating his probation, had recently begun to attend a sex offender program,
was gainfully employed, and that he helped care for his elderly grandmother.
[11] First, many of these factors were supported only by Webb’s testimony, which
the trial court was under no obligation to credit. Second, Webb was required by
the terms of his probation to attend the Sex Offender Monitoring and
Management program. Accordingly, he is not entitled to special consideration
for doing what was required by the terms of his probation.
[12] Third, Webb’s argument minimizes his long history of repeated criminal
activity. At the time of the dispositional hearing, Webb was thirty-six years old.
Yet his criminal history already included fifteen felonies and ten misdemeanors.
His prior convictions include three felony convictions for voyeurism, three
felony convictions for failing to register as a sex offender, two misdemeanor
convictions for public indecency, and one felony conviction each for sexual
misconduct with a minor, intimidation, and resisting law enforcement. Perhaps
most telling is that Webb had been on probation for voyeurism for less than
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three months when he violated the terms of his probation by again committing
the very same offense.
[13] Under these facts and circumstances, the trial court was well within its
discretion to give little credit to Webb’s claim that “something just hit” and that
he had “started looking at things differently now.” Tr. p. 11. Although we
sympathize with Webb’s elderly grandmother, Webb’s criminal behavior, and
the resulting punishment, has unfortunate collateral consequences, the blame
for which can only be laid at Webb’s feet.
Conclusion
[14] The trial court did not abuse its discretion when it revoked Webb’s probation
and ordered him to serve the eighteen-month balance of his previously
suspended sentence.
[15] Affirmed.
Robb, J., and Brown, J., concur.
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