Kyle E. Marvel v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                            Oct 08 2015, 9:25 am
    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
    Cara Schaefer Wieneke                                    Gregory F. Zoeller
    Wieneke Law Office, LLC                                  Attorney General of Indiana
    Plainfield, Indiana
    Christina D. Pace
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Kyle E. Marvel,                                          October 8, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    84A01-1503-CR-116
    v.                                               Appeal from the Vigo Superior
    Court
    State of Indiana,                                        The Honorable David R. Bolk,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause Nos.
    84D03-1208-FC-2583
    84D03-1012-FB-4037
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 1 of 10
    Statement of the Case
    [1]   Kyle E. Marvel (“Marvel”) appeals from the revocation of his probation in two
    separate cause numbers. Marvel pled guilty to Class C felony battery1 in one
    cause (“battery cause”) and to Class B felony burglary2 in another cause
    (“burglary cause”), and his plea agreement set forth the sentence to be imposed
    in both causes. The trial court sentenced him, pursuant to his plea agreement,
    to consecutive sentences of five years with two years executed on work release
    and three years suspended to formal probation in the battery cause and to six
    years with all six years suspended and four years on informal probation in the
    burglary cause.
    [2]   While on probation, Marvel committed another crime and possessed a shotgun
    in violation of the terms of his probation. In a consolidated hearing, the trial
    court: (1) revoked Marvel’s probation in the battery cause and ordered him to
    serve all of his previously suspended three-year sentence; (2) revoked Marvel’s
    probation in the burglary cause and ordered him to serve three years of his
    previously suspended six-year sentence and to serve the remaining three years
    1
    IND. CODE § 35-42-2-1. We note that, effective July 1, 2014, a new version of this battery statute was
    enacted and that Class C felony battery is now a Level 5 felony. Because Marvel committed this crime in
    2012, we will refer to the statute in effect at that time.
    2
    I.C. § 35-43-2-1. A new version of this burglary statute was enacted on July 1, 2014, and Class B felony
    burglary is now a Level 4 felony. Because Marvel committed this crime in 2010, we will refer to the statute
    in effect at that time.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015            Page 2 of 10
    on formal probation; and (3) ordered him to serve the executed portions of
    these previously suspended sentences consecutively.
    [3]   In this consolidated appeal, Marvel does not challenge the revocation of his
    probation or the trial court’s decision that he serve some of his previously
    suspended sentences in both causes. Instead, he contends that this case should
    be remanded because the trial court (1) erroneously believed that it was required
    to order him to serve the executed portion of his two revoked sentences
    consecutively; and (2) the trial court had authority to sentence him to
    concurrent sentences. Because Marvel’s original sentencing order provided that
    he serve the two sentences consecutively, we conclude that the trial court did
    not abuse its discretion when it revoked Marvel’s probation and ordered the
    executed portion of his two previously suspended sentences to be served
    consecutively.
    [4]   We affirm.
    Issue
    Whether the trial court abused its discretion by ordering Marvel to
    serve the executed portion of his two previously suspended
    sentences consecutively.
    Facts
    [5]   In December 2010, the State charged Marvel with Class B felony burglary and
    Class D felony theft in Cause 84D03-1012-FB-4037 (“Cause 4037”). In
    November 2011, Marvel tendered a plea of guilty to the Class B felony burglary
    charge under an “Adult Mental Health Deferral Agreement” (“mental health
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 3 of 10
    deferral agreement”). (App. 114). Under this agreement, the trial court
    deferred entry of Marvel’s judgment of conviction contingent upon his
    successful participation in a mental health program.
    [6]   However, prior to completing the mental health program, Marvel violated the
    terms of the mental health deferral agreement when he committed a new
    offense of battery in August 2012. Thereafter, the State filed a motion to revoke
    Marvel’s mental health deferral agreement and to enter judgment of conviction
    in Cause 4037. The State also charged Marvel with Class C felony battery
    resulting in bodily injury in Cause 84D03-1208-FC-2583 (“Cause 2583”).
    [7]   In February 2013, Marvel entered into a written plea agreement and pled guilty
    as charged in Cause 2583. Under the terms of his plea agreement, Marvel also
    admitted that he had violated the mental health deferral agreement in Cause
    4037. Additionally, he agreed to accept the State’s sentencing
    recommendations set forth in the plea agreement, which called for Marvel to be
    sentenced as follows: (1) in Cause 2583, to a sentence of five years with two
    years executed on work release and three years suspended to formal probation;
    (2) in Cause 4037, to a sentence of six years with all six years suspended and
    four years on informal probation; and (3) the sentences in Cause 2583 and
    Cause 4037 were to be “served consecutively as required by law.” (App. 31).
    Thereafter, the trial court entered judgments of conviction in both causes and
    sentenced Marvel as set forth in the plea agreement.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 4 of 10
    [8]    On January 5, 2015, the State filed a notice of probation violation, alleging that
    Marvel had violated his probation in both causes by: (1) committing the
    misdemeanor offense of unlawful possession of drug paraphernalia in Illinois in
    August 2014; (2) committing the offenses of Level 4 felony unlawful possession
    of a firearm by a serious violent felon and Level 6 felony dealing in a sawed-off
    shotgun in Indiana on December 11, 2014; (3) possessing a firearm in violation
    of probation rules; and (4) consuming alcohol in violation of probation rules.
    [9]    On January 25, 2015, the trial court held a consolidated hearing on Marvel’s
    probation revocation in Cause 2583 and Cause 4037. During the hearing, the
    State admitted, without objection, a copy of the criminal complaint, guilty plea,
    and judgment of conditional discharge from Marvel’s Illinois offense. The State
    also presented testimony from Marvel’s probation officer, who testified that,
    during a probation meeting, Marvel admitted to her that he had a shotgun.
    Marvel told the probation officer that the police had found the shotgun when
    the officers went to his grandparents’ house on a domestic disturbance call.3
    The State also presented testimony from one of the responding police officers,
    who testified that the gun found in the house was a sawed-off twelve-gauge
    shotgun.
    [10]   The trial court determined that Marvel had violated his probation in both
    causes by committing a subsequent criminal offense in Illinois and by
    3
    Marvel’s grandparents had called police to report a fight between Marvel and his girlfriend.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015              Page 5 of 10
    possessing a firearm while on probation. For Cause 2583, the trial court
    ordered Marvel to serve the balance of his previously suspended three-year
    sentence in the Department of Correction (“DOC”). For Cause 4037, the trial
    court ordered him to serve three years of his previous six-year suspended
    sentence in the DOC and to serve the remaining three years on formal
    probation. The trial court ordered that the executed time of the previously
    suspended sentences be served consecutively and informed Marvel that he
    would, therefore, be required to serve a total of six years in the DOC. Marvel
    now appeals.
    Decision
    [11]   Marvel argues that the trial court erred by ordering him to serve the executed
    portion of his two previously suspended sentences consecutively.
    [12]   “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.; see also IND. CODE § 35-38-2-3(a).
    Upon determining that a probationer has violated a condition of probation, the
    trial court “may impose one (1) 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 (1) year beyond the original probationary period.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 6 of 10
    (3) Order execution of all or part of the sentence that was
    suspended at the time of initial sentencing.
    I.C. § 35-38-2-3(h). “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
    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
    v. State, 
    825 N.E.2d 952
    , 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion
    occurs where the decision is clearly against the logic and effect of the facts and
    circumstances. 
    Id. [13] Marvel
    does not challenge the revocation of his probation. Nor does he
    challenge the trial court’s decision that he serve all or part of his previously
    suspended sentences in both causes. Instead, Marvel contends that this case
    should be remanded because the trial court “erroneously believed” that it was
    required to order him to serve the executed portion of his two revoked sentences
    consecutively. (Marvel’s Br. 3). Marvel’s argument seemingly stems from the
    trial court’s sentencing orders for both causes, in which the trial court stated
    that the sentences for Cause 2583 and Cause 4037 “shall be served
    consecutively as required by law, for a total sentence of six (6) years followed
    by three (3) years of formal probation.” (App. 62,181). Marvel acknowledges
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 7 of 10
    that, under INDIANA CODE § 35-50-1-2(d)(1),4 the trial court was required, in its
    original sentencing hearing, to order his sentences in Cause 2583 and Cause
    4037 to be served consecutively.5 He contends, however, that in this probation
    revocation proceeding, the trial court had discretion to order him to serve his
    executed portion of his two revoked sentences concurrently, rather than
    consecutively. Specifically, Marvel asserts that INDIANA CODE § 35-38-2-3—
    the statute pertaining to sanctions that a trial court may impose upon finding
    that a defendant has violated a condition of probation—should be read to grant
    a trial court the authority to order concurrent sentences upon a probation
    revocation. He reasons that if INDIANA CODE § 35-38-2-3 provides a trial court
    with “discretion to do nothing at all about the [probation] violation, then it also
    has the discretion to run any executed time it does impose concurrent with
    other sentences.” (Marvel’s Br. 3).
    4
    At the time of Marvel’s original sentencing, INDIANA CODE § 35-50-1-2(d)(1) provided:
    If, after being arrested for one (1) crime, a person commits another crime:
    (1) before the date the person is discharged from probation, parole, or a term of
    imprisonment for the first crime; or
    (2) while the person is released:
    (A) upon the person’s own recognizance; or
    (B) on bond;
    the terms of imprisonment for the crimes shall be served consecutively, regardless of the
    order in which the crimes are tried and sentences are imposed.
    (Emphasis added). This consecutive sentencing provision can be currently found at INDIANA CODE
    § 35-50-1-2(e)(1).
    5
    Although not mentioned by Marvel, his plea agreement also called for his sentences to be served
    consecutively.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015                  Page 8 of 10
    [14]   First, we do not agree with Marvel’s assertion that INDIANA CODE § 35-38-2-3
    should be read to include authority for a trial court to impose concurrent
    sentencing. Such a reading is incompatible with the plain language of this
    statute, and we will not interpret it beyond its plain language. See Pierce v. State,
    
    29 N.E.3d 1258
    , 1265 (Ind. 2015) (“When the statutory language is clear and
    unambiguous, we give effect to its plain and ordinary meaning.”).
    [15]   Nor do we agree with Marvel’s contention that the trial court could make a
    change to the original sentencing order in a probation revocation hearing and
    order him to serve the executed portion of his two revoked sentences
    concurrently, rather than consecutively. Such argument is based on the
    incorrect supposition that a trial court has discretion to sentence—or in this
    case, impose concurrent sentences—at a probation revocation proceeding. A
    trial court, however, does not “sentence” a defendant in a probation revocation
    proceeding. As our Indiana Supreme Court has explained:
    [T]he action taken by a trial court in a probation revocation
    proceeding is not a “sentencing.” The court is merely
    determining whether there has been a violation of probation and,
    if so, the extent to which the court’s conditional suspension of the
    original sentence should be modified and/or whether additional
    conditions or terms of probation are appropriate.
    [16]   Jones v. State, 
    885 N.E.2d 1286
    , 1289 (Ind. 2008). In other words, a trial court’s
    sentence determination in a probation revocation proceeding is a reinstatement
    of an already imposed sentence, which cannot be collaterally attacked. See
    Berry v. State, 
    904 N.E.2d 365
    , 366 (Ind. Ct. App. 2009) (citing Stephens v. State,
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 9 of 10
    
    818 N.E.2d 936
    , 939 (Ind. 2004) (observing that a defendant cannot collaterally
    attack a sentence on appeal from a probation revocation)).
    [17]   At the time of Marvel’s original sentencing hearing, the trial court was
    required—under both INDIANA CODE § 35-50-1-2(d)(1) and the terms of
    Marvel’s plea agreement—to order his sentences under Cause 2583 and Cause
    4037 to be served consecutively. Here, in this probation revocation proceeding,
    the trial court was merely required to determine whether there was a violation
    of Marvel’s probation and the extent to which the suspended portion of his
    original sentences would be served. See 
    id. The trial
    court did so, determining
    that Marvel had violated his probation and ordering him to serve the balance of
    his previously suspended sentence in Cause 2583 and to serve three years of the
    six years previously suspended in Cause 4037. Accordingly, the trial court did
    not abuse its discretion by ordering Marvel to serve the executed portion of his
    previously suspended sentences consecutively where the original sentencing
    provided that they be served consecutively. For the foregoing reasons, we
    affirm the trial court’s revocation of Marvel’s probation in both Cause 2583 and
    Cause 4037.
    [18]   Affirmed.
    Vaidik, C.J., and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 10 of 10