Antwain Starks v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 26 2017, 7:03 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
Leanna Weissman Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antwain Starks, January 26, 2017
Appellant-Defendant, Court of Appeals Case No.
69A01-1608-CR-1926
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff. Judge
Trial Court Cause No.
69D01-1507-F6-89
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 1 of 5
[1] Antwain Starks appeals the trial court’s order he serve the remainder of his
suspended sentence following the revocation of his probation. We affirm.
Facts and Procedural History
[2] On August 25, 2015, in Ripley County, Starks pled guilty to Level 6 felony
operating a vehicle while a habitual traffic violator 1 and Class A misdemeanor
making a false identity statement. 2 The trial court sentenced Starks to 910 days,
with 810 days suspended to probation. Starks received 100 days credit for time
served prior to sentencing. As a condition of his probation, Starks was
prohibited from committing any crimes.
[3] On May 23, 2016, the State filed a notice of probation violation alleging Starks
committed Level 5 felony escape, 3 Level 6 felony strangulation, 4 Level 6 felony
criminal confinement, 5 Level 6 felony domestic battery, 6 Level 6 felony battery
resulting in bodily injury, 7 and Level 6 felony resisting law enforcement 8 in
Marion County (“Marion County Offenses”). Prior to the probation revocation
1
Ind. Code § 9-30-10-16 (2015).
2
Ind. Code § 35-44.1-2-4 (2012).
3
Ind. Code § 35-44.1-3-4(a) (2014).
4
Ind. Code § 35-42-2-9(b) (2014).
5
Ind. Code § 35-42-3-3(a) (2014).
6
Ind. Code § 35-42-2-1.3(b) (2014).
7
Ind. Code § 35-42-2-1(d)(1) (2014).
8
Ind. Code § 35-44.1-3-1(b)(1) (2014).
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hearing, Starks was convicted of Level 5 felony escape and Level 6 felony
strangulation in the Marion County Offenses. At the time he committed the
Marion County Offenses, Starks was also on home detention for Level 5
burglary 9 in Hendricks County.
[4] At his probation revocation hearing on July 27, 2016, Starks admitted violating
his probation by committing the Marion County Offenses. Starks asked the
trial court for leniency based on the fact his mother was ill and he has four
children. He presented a letter from his employer indicating he was a “family
man.” (Tr. at 20.) Regarding those mitigators, the trial court stated, “The
Court has been presented with a letter indicating that [Starks] is a family man
and has four children, however that mitigator is diminished based on the fact
that the victim of the Strangulation was the mother of his four children.” (Id. at
29.) The court also noted Starks admitted he violated his probation, “however
the Court does believe that mitigator is diminished based on the fact that he has
already pled guilty in the Marion County Superior Court Criminal Division 5,
to the Escape and Strangulation, so a probation violation was a foregone
conclusion.” (Id.) The trial court found Starks’ criminal history to be “a
significant aggravating factor.” (Id. at 28.) The trial court revoked Starks’
9
Ind. Code § 35-43-2-1 (2014).
Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 3 of 5
probation, ordered him to serve 730 days 10 incarcerated, and gave him good
time credit for 57 days.
Discussion and Decision
[5] Starks alleges the court abused its discretion by ordering him to serve the
remainder of his suspended sentence. When reviewing a revocation decision,
we consider only the evidence most favorable to the judgment without assessing
credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
We affirm unless the trial court abused its discretion. Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007). “An abuse of discretion occurs where the decision
is clearly against the logic and effect of the facts and circumstances.” Id.
[6] Starks admitted his violation, and “proof of a single violation of the conditions
of probation is sufficient to support the decision to revoke probation.” Bussberg
v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g denied, trans. denied. On
finding a defendant violated his 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) (2016).
[7] Starks has an extensive criminal history, with offenses ranging from public
intoxication to strangulation and burglary. At the time of the Marion County
Offenses, Starks was also on home detention for a burglary in Hendricks
10
The parties appear to agree this was the remainder of his suspended sentence.
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County. While Starks professed to be a family man, the trial court noted the
victim in his strangulation case was the mother of his children. In light of the
fact that Starks was serving separate terms of probation and home detention
when he committed these new crimes, which included strangulation of the
mother of his four children, we find no abuse of discretion in the court’s
imposition of 730 days of Starks’ suspended sentence. See, e.g., Pierce v. State, 44
N.E.3d 752, 755 (Ind. Ct. App. 2015) (revocation of probation appropriate after
probationer committed crimes while on probation).
Conclusion
[8] The trial court did not abuse its discretion when it ordered Starks to serve 730
days of his suspended sentence following the revocation of his probation.
Accordingly, we affirm.
[9] Affirmed.
Najam, J., and Bailey, J., concur.
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