Kyle James Fravel 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 Mar 29 2019, 7:39 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Heard Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle James Fravel, March 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2099
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
Trial Court Cause No. 82C01-
1512-F2-7795
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Kyle Fravel (Fravel), appeals the trial court’s revocation
of his probation and imposition of his previously-suspended sentence.
[2] We affirm.
ISSUE
[3] Fravel raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion in revoking his probation and ordering him to
serve the totality of his previously-suspended sentence.
FACTS AND PROCEDURAL HISTORY
[4] On December 14, 2015, sixteen-year-old Fravel and some of his friends robbed
a nearby residence. Fravel waited in the car while his friends kicked in the door
of the residence. During the robbery, one of the residents was held at gunpoint,
while the other had a machete held to his chest. Fravel admitted that he was
aware of the plan to commit the robbery.
[5] On March 22, 2016, the State filed an amended Information, charging Fravel
with eight Counts: burglary, a Level 2 felony; aiding, inducing, or causing
burglary, a Level 2 felony; armed robbery, a Level 3 felony; two Counts of
aiding, inducing, or causing armed robbery, Level 3 felonies; two Counts of
armed robbery, Level 3 felonies; and criminal mischief, a Class B misdemeanor.
On August 16, 2016, the State filed an “Information for Sentencing
Enhancement for Person Committing Felony Offense While A Member of A
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Criminal Gang.” (Appellant’s App. Vol. II, p. 71). That same day, Fravel pled
guilty to aiding, inducing, or causing armed robbery, as a Level 3 felony, and
the criminal gang enhancement; the State dismissed all other charges. On
October 18, 2016, the trial court sentenced him to three years for the Level 3
felony, enhanced by another three years for the criminal gang adjudication.
Fravel was ordered to serve the first sixteen months of his sentence in a juvenile
facility, where he obtained his GED. Upon completion of this placement,
Fravel’s sentence was modified by placing him on probation and he was
released on October 17, 2017. As a condition of his probation, Fravel was
required to either find employment or attend school.
[6] On October 25, 2017, Chanze Merrick (Merrick) and Tyler Flota (Flota)
arranged to purchase marijuana from Fravel. The meeting took place in
Fravel’s car. Merrick had not met Fravel previously but found his voice
distinctive. After Fravel gave Flota the marijuana, Flota and Merrick took off
running without paying Fravel. While running, Merrick heard several
gunshots. When police officers responded to the scene, they discovered Flota
who had been shot in the leg. During a preliminary investigation, Flota
identified Fravel as the shooter. After Fravel and Merrick were both arrested
and booked into the jail, Fravel came up to Merrick, asking him “do you
remember me . . . my name is [Fravel].” (Transcript Vol. I, p. 33). Merrick
recognized the name and the voice. Merrick entered a guilty plea a couple of
weeks later, in which he agreed to testify truthfully if called to do so. After
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Merrick entered his plea and returned to jail, Fravel approached him, advising
him to back out of his plea agreement and to take his case to trial.
[7] On October 26, 2017, the State filed a petition to revoke Fravel’s probation. On
August 2, 2018, the trial court conducted a consolidated bench trial on the
probation revocation petition and Fravel’s new criminal charges. Flota was
granted use immunity to testify against Fravel, but he refused to testify for fear
of retaliation. Because the trial court concluded that without Flota’s testimony
there was insufficient evidence beyond a reasonable doubt that Fravel was the
shooter, the trial court only found him guilty of dealing in marijuana, as a Class
A misdemeanor. Thereafter, based on this new misdemeanor conviction, the
trial court revoked Fravel’s probation in the current cause and ordered him to
serve the remaining portion of his previously-suspended six-year sentence in the
Department of Correction (DOC).
[8] Fravel now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[9] Fravel maintains that the trial court abused its discretion when it remanded him
to the DOC to serve the remainder of his previously-suspended sentence.
Probation is a matter of grace left to the trial court’s sound 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 probationer violates those conditions. Id. We
review a trial court’s probation violation determination using an abuse of
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discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014).
An abuse of discretion occurs where the trial court’s decision is clearly against
the logic and effect of the facts and circumstances before it or where the trial
court misinterprets the law. Id. In determining whether a trial court has abused
its discretion, we neither reweigh evidence nor judge witness credibility. Ripps
v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider
conflicting evidence in the light most favorable to the trial court’s ruling. Id.[10] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation
is found, the court determines whether the violation warrants revocation. Id.Because a probation revocation proceeding is civil in nature, the State need only
prove the alleged probation violation by a preponderance of the evidence.
Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single
violation is sufficient to permit a trial court to revoke probation. Beeler v. State,
959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.
[11] After Fravel was found guilty of the Class A misdemeanor dealing in
marijuana, the trial court could impose, in the current cause, one or more of the
following sanctions: (1) continue Fravel’s probation, with or without
modifying or enlarging the conditions; (2) extend his 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 the
initial sentencing. Ind. Code § 35-38-2-3(h). Pursuant to the statute, the trial
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court elected to order the execution of all of Fravel’s previously-suspended
term.
[12] Analogizing to recent case law in which we reversed a trial court’s probation
revocation because it failed to consider the particular facts and circumstances of
the defendant, Fravel maintains that his specific situation did not warrant the
imposition of the entire previously-suspended sentence. See, e.g., Ripps v. State,
968 N.E.2d 323, 328 (Ind. Ct. App. 2012) (Trial court abused its discretion by
imposing the entire previously-suspended sentence where defendant was
terminally ill and was attempting to adhere to his probation conditions);
Sullivan v. State, 56 N.E. 3d 1157, 1162 (Ind. Ct. App. 2016) (Trial court abused
its discretion by imposing the entire previously-suspended sentence where
defendant was at a mental health hospital at the time he was required to report
to probation). Focusing on his age, his success at the juvenile detention facility
where he obtained his GED, and the nature of the misdemeanor conviction,
Fravel maintains that the imposition of his six-year sentence amounted to an
abuse of discretion and should be reversed.
[13] We disagree. Unlike the precedents relied upon by Fravel, the circumstances
leading to Fravel’s probation revocation were not outside of his control; rather,
Fravel intentionally committed a new crime which resulted in a misdemeanor
conviction. Just over a week after beginning his probation, Fravel was already
dealing marijuana and suspected to be involved in a shootout after the deal
turned sour. After being arrested and while awaiting trial in jail, Fravel
attempted to influence the victims and witnesses against him.
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[14] Furthermore, we find Fravel’s reliance on his particular situation to be
misplaced. Pointing to his GED as a circumstance in his favor, he fails to
acknowledge that obtaining his GED was a requirement under his probation
and therefore cannot be considered a mitigating circumstance. While his young
age of nineteen could have been a favorable factor, “for people in their teens
and early twenties [age] is not the end of the inquiry. There are both relatively
old offenders who seem clueless and relatively young ones who appear
hardened and purposeful.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000).
Fravel appears to fall in this second category. At age nineteen, Fravel has
already been convicted and served sixteen months for the role he played in an
armed robbery with an additional enhancement for gang involvement. He then
committed this second criminal offense—with an allegation of being armed—
just one week after beginning his probation.
[15] Viewing the circumstances of this particular case, we cannot say that the trial
court abused its discretion by ordering Fravel to serve his entire previously-
suspended sentence.
CONCLUSION
[16] Based on the foregoing, we affirm the trial court’s revocation of Fravel’s
suspended sentence and imposition of his previously-suspended six-year
sentence.
[17] Affirmed.
[18] Bailey, J. and Pyle, J. concur
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