Billy Ray Mead v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 30 2013, 7:36 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:
DONALD S. EDWARDS GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BILLY RAY MEAD, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1301-CR-33
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1007-FB-1611
July 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
The trial court revoked Billy Ray Mead’s probation and ordered him to serve his
previously suspended five-year sentence in the Indiana Department of Correction, with
credit for time served. Mead argues that the trial court should have ordered him to serve
a portion of his sentence on community corrections. Finding no error, we affirm the trial
court.
Facts and Procedural History
In 2010, Mead pled guilty to Class C felony possession of methamphetamine and
Class D felony resisting law enforcement. He also admitted to violating the terms of his
probation in an unrelated case. On the Class C felony charge, the trial court sentenced
Mead to a six-month direct placement in the Southern Indiana Forensic Diversion
Program, an eighteen-month direct placement with Bartholomew County Community
Corrections (“BCCC”), and a five-year suspended sentence in the Indiana Department of
Correction. On the Class D felony charge, the trial court sentenced Mead to a two-year
jail sentence, with 197 credit days. The trial court placed Mead on probation for seven
years effective after the Southern Indiana Forensic Diversion Program and the direct
placement with BCCC. These sentences were to run consecutively.
In February 2012, the probation department filed a petition to revoke probation
alleging that Mead had failed to pay probation fees. While this petition was pending, the
State filed a petition to revoke probation alleging that Mead violated probation by using
methamphetamine in October 2012. During the evidentiary hearing, Mead admitted to
using methamphetamine in October 2012 and owing fees. Tr. p. 55-57.
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At the dispositional hearing, the court considered Mead’s extensive criminal
history and his several opportunities for treatment outside penal facilities to be
aggravating factors. Mead testified that he recognized his substance-abuse problem and
asked to be placed in community corrections. Mead’s mother testified that Mead slipped
into old patterns of poor judgment while on probation, and his probation officer
recommended that he execute the remainder of his sentence. The trial court revoked
Mead’s probation and ordered him to serve his five-year suspended sentence for
possession of methamphetamine in the DOC and recommended substance-abuse
treatment during incarceration. Mead filed a motion to correct error and to correct
erroneous sentences, which the trial court denied. Mead now appeals.
Discussion and Decision
Mead argues that the trial court abused its discretion when it ordered him to serve
his entire previously suspended sentence, with credit for time served. We disagree.
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 v. State, 878 N.E.2d 184, 187 (Ind. 2007). 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. Id. Accordingly, a trial court’s sentencing decision for a
probation violation is reviewable using the abuse-of-discretion standard. Id. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id. If a trial court finds that a person has violated his probation before
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termination of the period, the court may order execution of all or part of the sentence that
was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g).
In this case, we find that Mead’s criminal history and likelihood of reoffending
sufficiently support the trial court’s decision to order execution of the previously
suspended five-year sentence. When imposing Mead’s probation-revocation sentence,
the trial court cited his extensive criminal history, past probation violations, and past
opportunities for substance-abuse treatment outside a penal facility. Tr. p. 80-82. Mead
has had eight convictions, including four felonies. Id. at 75. The conviction for resisting
law enforcement came after he led officers on a 100-mph chase on public roads while
having methamphetamine in his system. Id. at 29-31. The courts have offered Mead
several substance-abuse treatment programs without sustained success in 1991, 2000,
2001, and 2011. Id. at 80. The court also considered Mead’s mother’s testimony about
his backslide into old patterns of behavior and associations while on probation. Id. at 72.
The trial court stated:
The recommendation is that he should serve his sentence
because Mr. Mead at some point, programs become a joke. . .
. [P]eople keep violating, violating and violating, and they
don’t get the consequence. . . . . It’s as though everybody
comes to understand, oh well, I can violate and oh, they are
just going to put me back in the program. . . . . But your
mother noted that oh, you started to associate with these two
other individuals and then she saw a change in you and your
attitude. So this wasn’t just a one[-]time slip. This was Billy
Mead falling back into his old ways. Regardless of how you
want to portray it.
Id. at 80-81.
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Mead’s sole argument on appeal is that “Community Corrections placement of
[Mead] for a portion of his executed sentence imposed for the violation . . . would permit
[him] to reestablish his employment while getting further treatment and monitoring and
would arguably be more appropriate.” Appellant’s Br. p. 10. We cannot agree. Mead
has a significant criminal history and failed to take advantage of the alternative
sentencing opportunity previously afforded to him. As the trial court aptly noted,
programs become “a joke” at some point if there are not any consequences. Tr. p. 80-81.
The trial court did not abuse its discretion in ordering Mead to serve his entire previously
suspended five-year sentence.
Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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