Sherry L. Pruitt v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 25 2013, 8:23 am
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:
JEFFREY E. STRATMAN GREGORY F. ZOELLER
Aurora, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHERRY L. PRUITT, )
)
Appellant-Respondent, )
)
vs. ) No. 58A01-1206-CR-275
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE OHIO CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause Nos. 58D01-0707-FD-56, 58D01-0804-FC-3
March 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Sherry Pruitt appeals the order that she serve 1095 days, which had been previously
suspended, following revocation of her probation. Pruitt asserts the court ordered her to
serve more days executed than the 365 days she had remaining on one of her suspended
sentences. However, the court revoked Pruitt’s probation under two cause numbers, not just
one, and the combined number of days remaining on those two sentences was 1095. Thus,
the order that she serve those days was not an abuse of discretion. Nevertheless, we remand
for the court to correct the clerical error that resulted in Pruitt’s confusion.
FACTS AND PROCEDURAL HISTORY
On September 28, 2008, the court ordered Pruitt to serve a three-year sentence with
one year suspended to probation under cause FD-056 consecutive to eleven years with four
years suspended under cause FD-003. Pruitt would serve five years of probation during the
five years suspended under both cause numbers and would begin serving probation on release
from incarceration.
On September 16, 2011, the State alleged Pruitt violated probation by failing to report
to the Probation Department. After hearing evidence and finding that allegation true, the trial
court revoked two years of her previously suspended sentence under FC-003, with the last
365 days of the revocation to be served on in-home detention.
On March 8, 2012, the State alleged Pruitt again violated probation by using
marijuana. The trial court found Pruitt violated probation, and it ordered: (1) her 365 days of
home detention converted to incarceration; (2) revocation of her remaining three years of
suspended sentence (two from FC-003 and one from FD-056); and (3) the three revoked
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years be served consecutive to the 365 days converted from home detention, for four total
years of incarceration.
DISCUSSION AND DECISION
After revoking probation, the trial court may order execution of all or part of a
suspended sentence. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012); see also Ind.
Code § 35-38-2-3(h)(3). Sentencing decisions for probation violations are reviewable for an
abuse of discretion, which occurs “where the decision is clearly against the logic and effect
of the facts and circumstances.” Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). A “judge
should have considerable leeway in deciding how to proceed” after granting probation,
because trial judges would hesitate to grant probation if their sentences were heavily
scrutinized on appeal. Id.Pruitt asserts the court ordered her to serve more days incarcerated than she had
remaining on her sentence. The number of days remaining on a defendant’s sentence is a
question of law, not a matter left to the court’s discretion. Robinson v. State, 799 N.E.2d
1202, 1204 (Ind. Ct. App. 2003) (where a sentence is challenged as erroneous on its face
based on applicable statutes, it is a question of law). We review questions of law de novo.
Dawson v. State, 938 N.E.2d 841, 844 (Ind. 2010).
Pruitt bases her sentencing argument on the fact that the abstract of judgment indicates
the court ordered her to serve 1095 days following revocation of probation under cause
number FD-056 only. However, the original and amended dispositional orders list both
cause number 056 and cause number 003. (App. at 79, 86). Furthermore, the abstract of
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judgment indicates Pruitt is to serve the sentence for FC-003 consecutive to FC-056, and
three suspended years remained between both causes. It is apparent the trial court intended to
revoke her suspended sentences under both causes and the reference on the abstract of
judgment to only one cause was a clerical error.
Pruitt argues, in the alternative, that revoking all of the remaining time suspended on
her sentence was an abuse of discretion under the circumstances and evidence presented.
Pruitt acknowledges the trial court has no obligation to find or weigh mitigating factors, but
she nevertheless argues mitigating factors demonstrate the trial court abused its discretion in
this case. We cannot agree. Revocation of a previously suspended sentence is lawful when
probation is violated. See Ind. Code. § 35-38-2-3(h)(3). Pruitt’s use of marijuana permitted
revocation of the three years she had remaining on probation. See Alford, 965 N.E.2d at 135(violation of no-contact probation order justified execution of all remaining days in
sentence).
We affirm the revocation of Pruitt’s probation and the order that she serve
incarcerated the three years remaining on her sentences. However, we remand for the court
to enter a modified abstract of judgment that lists both cause numbers under which the
revocation was adjudicated.
Affirmed and remanded.
ROBB, C.J., and PYLE, J., concur.
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