Charles B. Dietzen v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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:
PAUL J. PACIOR GREGORY F. ZOELLER
Noblesville, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 04 2012, 9:32 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
CHARLES B. DIETZEN, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1112-CR-1104
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-0503-FD-54
September 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Charles B. Dietzen a/k/a Timothy Livpakka and Timothy Luipakks appeals the
trial court’s order reinstating his suspended sentence.
We affirm.
ISSUE
Whether the trial court abused its discretion in sentencing Dietzen to the
balance of his suspended sentence after he violated the terms of probation.
FACTS
On March 30, 2005, while in a supermarket in Fishers, Dietzen stashed three
packages of beef inside the waistband of his pants, covered his pants with his coat, and
attempted to leave the store without paying for the items. A loss prevention employee
stopped him and the police were called.
Dietzen was arrested and charged with theft, a class D felony, and criminal
trespass, a class A misdemeanor. On June 30, 2005, Dietzen entered into a plea
agreement in which he agreed to plead guilty to the theft charge and in which the State
recommended that Dietzen receive a three-year sentence, all suspended except for time
served, and one year of probation. The trial court imposed the recommended sentence,
placing Dietzen on probation on the same day as the guilty plea hearing. The State
dismissed the criminal trespass charge.
Dietzen was informed of the conditions of his probation and of the possibility of
revocation of probation should he violate those conditions. At the hearing, Dietzen was
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specifically advised that he would have to remain in Indiana until the probation
department could arrange transfer of his probation to Wisconsin. Dietzen signed the
“Order of Probation,” which informed him of the conditions of probation, including the
requirements that he would (1) regularly report to the Hamilton Probation Department;
(2) notify his probation officer of any change of address, telephone number, or
employment status within twenty-four hours of the change; (3) obtain consent of his
probation officer before leaving Indiana; and (4) comply with all local, state, and federal
laws.
He reported to probation on four occasions, with the last report occurring on
October 31, 2005. On December 8, 2005, the probation department filed an “Information
of Violation of Probation,” alleging that Dietzen “failed to show up for his November 23,
2005 probation appointment” and that Dietzen “failed to let the probation department
know of his current address or telephone number[, as] Mr. Dietzen’s whereabouts are at
this time unknown.” (App. 43).
Dietzen’s whereabouts remained unknown for almost six years. On July 19, 2011,
the Hamilton Probation Department was informed by Marion County court staff that
Marion County had in its custody an individual named Timothy Livpakka, a person that
Marion County officials believed was Dietzen. A comparison of fingerprints proved that
Marion County officials were correct.
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On November 17, 2011, a Hamilton court held a probation revocation hearing. At
the hearing, a Hamilton County Adult Probation Violation Officer testified that in 2005
Dietzen had absconded to Wisconsin and then Minnesota. The officer further testified
that Dietzen returned to Indiana in 2006 and was arrested for possession of paraphernalia,
operating a vehicle without a license, and resisting law enforcement.1 In 2011, Dietzen
again returned to Indiana where he was charged with auto theft and receiving stolen parts.
He was convicted on the auto theft charge, for which he received a sentence of one and
one-half years. It was at this time that Marion County notified Hamilton County of
Dietzen’s whereabouts.
Dietzen admitted that the probation officer’s testimony was accurate, and when
asked why he did not report to probation while he was in Indiana, he stated that he was
only in the State for “a minute.” (Tr. 37). Dietzen testified Minnesota detained him for
traffic violations while he was there. He further testified that he used his aliases as “just a
driving thing.” (Tr. 34).
At the conclusion of the probation hearing, the deputy prosecutor argued:
[I]f you look at his criminal history and what’s gone on, I mean he’s a
person who steals things. And he was given the opportunity by this Court
to be on probation and just abide by the terms of probation and he would
have been done. Instead, he chose to leave, not report. According to
probation, he stopped reporting in October [of 2005]. He was arrested in
June of 2006 in Marion County . . . at the very least he could have reported
back to probation and tried to settle this issue . . . He didn’t do that. We
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The record does not disclose whether convictions resulted from this arrest.
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would have really never found out about him if he hadn’t come back for
more than a minute, I guess, in February and [was] re-arrested and we got
notified somehow by Marion County . . . He’s not taking responsibility for
his actions. He’s not taking responsibility for what he was supposed to be
doing on probation. He just thinks he should get a walk and I don’t think
he should. I think that every time he’s here, he’s getting in trouble and that
he should [serve] the rest of his time.
(Tr. 39).
The trial court found that Dietzen violated the terms of his probation and ordered
him to serve the suspended portion of his sentence. In its “Order of November 17, 2011,”
the trial court noted that Dietzen “has 438 actual days remaining on his sentence.” (App.
61).
DECISION
Probation is a conditional liberty, and the “granting of a conditional liberty is a
favor and not a right.” Baker v. State, 894 N.E.2d 594, 597 (Ind. Ct. App. (Ind. Ct. App.
2008). The trial court’s decision of whether to grant probation is a matter within its
sound discretion. Monday v. State, 671 N.E.2d 467, 468 (Ind. Ct. App. 1996). A trial
court may revoke a person’s probation upon evidence of the violation of a single term of
probation. Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). We review
a trial court’s decision to revoke probation for an abuse of discretion. Podlusky v. State,
839 N.E.2d 198, 200 (Ind. Ct. App. 2005). Furthermore, we review a trial court’s
sentencing decision in a probation revocation proceeding for an abuse of discretion. Id.5
Indiana Code section 35-38-2-3(h)(3) provides that if the trial court finds that a
person has violated a condition of probation, the trial court may “[o]rder execution of all
or part of the sentence that was suspended at the time of the initial sentencing.” Here,
Dietzen contends that based on the circumstances of the case, the trial court should not
have ordered execution of his entire suspended sentence. He argues that the trial court
abused its decision, as the decision is clearly against the logic and effect of the facts and
circumstances. He cites Podlusky in support of his argument.
Initially, we observe that contrary to Dietzen’s contention, we did not in Podlusky
reverse the trial court’s decision to order execution of the probationer’s entire suspended
sentence. We noted that a trial court may encounter instances where imposition of less
than the entire suspended sentence is warranted, “including, possibly the one that is
before us today,” but we did not make such a finding, and we affirmed the trial court’s
order requiring the defendant to serve her entire suspended sentence. 839 N.E.2d at 202.
The crux of the opinion was to examine the provisions of the version of Indiana Code
section 35-38-1-3 as the statute existed at that time.
We also observe that a defendant may not collaterally challenge his underlying
sentence on appeal from a probation revocation. Podlusky, 839 N.E.2d at 200. To the
extent that Dietzen is arguing that the reinstated sentence is too lengthy under the facts of
the underlying theft conviction, we observe that (1) he pled guilty under an agreement
that informed him of the State’s sentencing recommendation; (2) he chose to abscond
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rather than appeal the length of the sentence; and (3) he cannot now challenge the
sentence.
To the extent that Dietzen is arguing that failure to report and failure to inform his
probation officer of his address changes is insufficient to warrant a fully reinstated
sentence, we observe that these failures completely eliminated the probation department’s
ability to perform its function of monitoring Dietzen’s activities. The importance of these
failures is illustrated by the criminal activities that Dietzen admits to engaging in during
the time he was not reporting to or informing the probation department as required by the
conditions of his probation.
We cannot say that the trial court abused its discretion in ordering that Dietzen
serve the entire suspended sentence.
Affirmed.
FRIEDLANDER, J., and BROWN, J., concur.
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