Roy Buford 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 May 25 2017, 8:17 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
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roy Buford, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
22A04-1610-CR-2377
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Richard G.
Appellee-Plaintiff. Striegel, Senior Judge
Trial Court Cause No.
22D03-0902-FB-335
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Roy Buford (Buford), appeals the trial court’s revocation
of his probation and the imposition of his previously suspended sentence.
[2] We affirm.
ISSUE
[3] Buford presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion by ordering Buford to serve his previously suspended
sentence after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On February 17, 2009, in cause number 22D03-0902-FB-00335 (FB-00335), the
State charged Buford with armed robbery, a Class C felony; carjacking, a Class
B felony; and auto theft, a Class D felony. On May 6, 2009, Buford entered a
plea agreement with the State in which he pled guilty to the carjacking offense.
The State agreed to dismiss the remaining charges. On June 23, 2009, the trial
court accepted Bufford’s plea and sentenced him in accordance with his plea
agreement. Specifically, the trial court sentenced Buford to seventeen years in
the Department of Correction (DOC); with fourteen years executed and three
years suspended to supervised probation.
[5] Following his release from the DOC, on March 11, 2015, Buford was placed on
probation with the Floyd County Adult Probation Department. Buford
thereafter sought a transfer of his probation to Kentucky. In November 2014,
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Buford failed to abide by the other terms of his probation, including failure to
maintain good behavior; notify the probation department of his address; report
to probation; and pay fees. On November 26, 2014, the Floyd County
probation department filed a probation violation. On December 8, 2014, the
State filed a petition to revoke Buford’s probation. On December 19, 2014, the
trial court revoked 142 days of Buford’s suspended sentence and converted it
into jail time. As a result, Buford was left with 938 days suspended to
probation.
[6] On November 18, 2015, the Floyd County probation department filed another
probation violation against Buford, alleging that he had committed new
criminal offenses in Kentucky in cause number 15-F-011066, specifically,
wanton endangerment in the first degree and assault in the fourth degree. On
December 9, 2015, the Floyd County probation department amended the notice
of probation violation adding other probation violations based on Buford’s
additional offenses in two unrelated cause numbers. In cause number 15-F-
012089, Buford was charged with resisting law enforcement, and in cause
number 15-F-018899, he had pled guilty to “Attempted Tampering with a
Witness.” (Tr. p. 7). On January 27, 2016, the State filed a petition to revoke
Buford’s probation based on the offenses committed in Kentucky.
[7] On May 2, 2016, the Floyd probation department filed an amended notice of
probation violation, indicating that Buford had pled guilty to the offenses in
cause number 15-F-011066, i.e., wanton endangerment in the first degree and
assault in the fourth degree; and to the resisting law enforcement offense in
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cause number 15-F-012089. On May 20, 2016, the State correspondingly filed
an amended petition to revoke probation. On September 16, 2016, the trial
court held a revocation hearing. At the close of the hearing, the trial court
found that Buford had violated his probation, and ordered him to serve 938
days of his suspended sentence in the DOC.
[8] Buford now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] On appeal, Buford challenges the revocation of his probation. “‘Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)
(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Accordingly, the
trial court has discretion to set the conditions of probation and to revoke
probation if those conditions are violated. Id. On appeal following a trial
court’s determination of a probation violation and imposition of sanctions, we
review for an abuse of discretion. Id. It is an abuse of discretion if the trial
court’s “decision is clearly against the logic and effect of the facts and
circumstances, or when the trial court misinterprets the law.” Id. (internal
citation omitted).
[10] Here, the trial court did not abuse its discretion when it imposed 938 days of
Buford’s suspended sentence. After the State filed its initial petition to revoke
Buford’s probation in 2014 based on his failure to report to probation and notify
the department of the change of his address, the trial court revoked only 142
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days of his suspended sentence. Buford was ordered to resume probation upon
his release from jail. At that time, the trial court showed leniency by not
imposing the balance of his previously suspended sentence. In 2015, while on
probation, Buford committed and pleaded guilty to all four of the new offenses
in Kentucky.
[11] Buford argues that the new offenses committed in Kentucky, were “not
particularly weighty,” and the trial court abused its discretion for imposing the
balance of his suspended sentence. (Appellant’s Br. p. 11). Notwithstanding
Buford’s assertion, we note that violation of a single condition of probation is
sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.
1999). As a condition of his probation, Buford was ordered not to commit a
new offense. Instead of abiding by this term, Buford committed not one, but
several criminal offenses in Kentucky. In addition to violating his probation by
committing new criminal offenses, Buford failed to abide by the other terms of
his probation, including failure to maintain good behavior; report to probation;
and pay fees.
[12] Here, the facts demonstrate Buford’s disregard for court orders and the
probation system. As such, we conclude that the trial court was within its
discretion in to determine that Buford was not a good candidate for probation
and revoking his 938-day suspended sentence in the entirety. Accordingly, we
affirm the trial court’s order revoking Buford’s probation.
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CONCLUSION
[13] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in revoking Buford’s probation and imposing the balance of his
previously suspended sentence.
[14] Affirmed.
[15] Najam, J. and Bradford, J. concur
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