Bradly Paul Canter 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 Mar 23 2017, 7:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott Knierim Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradly Paul Canter, March 23, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1606-CR-1289
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie LeMay-
Appellee-Plaintiff Luken, Judge
Trial Court Cause No.
32D05-1411-F3-10
May, Judge.
[1] Bradley Paul Canter appeals the trial court’s imposition, for his probation
violations, of the 730 days remaining on his suspended sentence. Because the
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type of review Canter requests is not available to challenge the sanction
imposed following probation violation, we affirm.
Facts and Procedural History
[2] On May 14, 2015, Canter pled guilty to Level 5 felony robbery.1 He was
sentenced to four-years imprisonment, with three years suspended to probation.
On February 9, 2016, the State filed a notice of probation violation, alleging he
had committed new criminal offenses, had used marijuana, and had “failed to
complete substance abuse counseling as recommended by [his] Probation
Officer.” (App. Vol. 2 at 13.) On March 8, 2016, the State filed a subsequent
notice of probation violation alleging Canter had failed to provide contact
information to his Probation Officer.
[3] At the evidentiary hearing on May 18, 2016, Hendricks County Probation
Department Officer Megan Caruso testified Canter had not provided her with a
valid address or a working phone number, he had not made the appointments
required to qualify for Work Release or Home Detention, he failed a urinalysis
due to marijuana use, and he failed to complete the substance abuse counseling.
Canter testified he had smoked marijuana “approximately three (3) times.” (Tr.
at 22.)
1
Ind. Code § 35-42-5-1 (2014).
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[4] Based on the evidence presented, the trial court found the State had proven all
the allegations except the new criminal offense, as that matter had not gone to
trial at the time of the hearing. The trial court then terminated Canter’s
probation and ordered him to serve the remaining 730 days of his sentence at
the Indiana Department of Correction.
Discussion and Decision
[5] Canter’s sole argument on appeal is that “the sentence of 730 days to the
Indiana Department of Corrections [sic] was inappropriate under Indiana
Appellate Rule 7(B).” (Appellant’s Br. at 7.)
Rule 7(B) authorizes appellate review and revision of “a sentence
authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the
offender.” The Rule permits an appellate determination of the
appropriateness of a criminal sentence and implements the
permissive jurisdiction granted in Article 7, Section 4 of the
Indiana Constitution: “The Supreme Court shall have, in all
appeals of criminal cases, the power . . . to review and revise the
sentence imposed.”
As this Court has recently held, the appellate evaluation of
whether a trial court’s sanctions are “inappropriate in light of the
nature of the offense and the character of the offender” is not the
correct standard to apply when reviewing a trial court’s actions in
a post-sentence probation violation proceeding. Prewitt v. State,
878 N.E.2d 184, 187-88 (Ind. 2007). A trial court’s actions in a
post-sentence probation violation proceeding is not a criminal
sentence as contemplated by the rule. The review and revise
remedy of App. R. 7(B) is not available.
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Jones v. State, 885 N.E.2d 1286, 1289-90 (Ind. 2008). Because Canter’s only
argument on appeal is unavailable,2 we affirm the trial court’s imposition of the
730 days remaining on Canter’s sentence.
[6] Affirmed.
Najam, J., and Bailey, J., concur.
2
Sanctions for probation violations “are subject to appellate review for abuse of discretion.” Jones, 885
N.E.2d at 1290. Canter has not argued the trial court abused its discretion and, thus, any such argument is
waived for appeal. Waiver notwithstanding, we would not find an abuse of discretion in the imposition of
730 days, as the State provided sufficient evidence Canter violated his probation. See, e.g., Crump v. State, 740
N.E.2d 564, 573 (Ind. Ct. App. 2000) (court did not abuse discretion in ordering Crump to serve eight years
that had been suspended because court had properly found his violation and revoked probation), trans. denied;
see also Ind. Code § 35-38-2-3 (permitting court to “[o]rder execution of all or part of the sentence that was
suspended at the time of initial sentencing” when revoking probation).
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