Julio Chavez v. State of Indiana ( 2012 )


Menu:
  •  Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before                         May 21 2012, 9:20 am
    any court except for the purpose of
    establishing the defense of res judicata,                            CLERK
    of the supreme court,
    collateral estoppel, or the law of the case.                       court of appeals and
    tax court
    ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
    VALERIE K. BOOTS                                     GREGORY F. ZOELLER
    Indianapolis, Indiana                                Attorney General of Indiana
    MICHAEL GENE WORDEN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    JULIO CHAVEZ,                                        )
    )
    Appellant-Defendant,                          )
    )
    vs.                                   )      No. 49A02-1110-CR-899
    )
    STATE OF INDIANA,                                    )
    )
    Appellee-Plaintiff.                           )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Robert R. Altice, Judge
    Cause No. 49G02-0604-FC-069542
    May 21, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    VAIDIK, Judge
    Case Summary
    Julio Chavez appeals the revocation of his probation and the trial court’s order that
    he serve the remaining two years of his sentence. Chavez contends that his deportation
    prevented his probationary period from beginning and made it impossible for him to
    report for probation. Because Chavez’s probationary period began after sentencing and
    because Chavez failed to report to probation after returning to the United States, the trial
    court did not err in revoking his probation. We affirm.
    Facts and Procedural History
    On August 23, 2006, Chavez pled guilty to Class C felony carrying a handgun
    without a license. At the combined plea and sentencing hearing, the trial court learned
    that Chavez was in the country illegally and was likely to be deported sometime after
    sentencing. The court acknowledged this, stating, “Now, if INS decides to deport you,
    then I would ask probation to notify the Court, or INS to notify the Court and we’ll
    suspend that probationary time – well, I’ll consider that. I don’t know what the situation
    would be.” Tr. p. 23. A notation was also entered on the CCS, which read, “Court will
    waive probation if [Defendant] is deported from DOC.” Appellant’s App. p. 9. The trial
    court sentenced Chavez to four years in the Indiana Department of Correction (“DOC”),
    with two years suspended to probation. Chavez was ordered to report to the Marion
    County Probation Department upon his release from the DOC; however, Chavez was
    released from the DOC directly to federal immigration officers on June 1, 2007, and was
    deported to El Salvador in December 2007.
    2
    The Marion County Probation Department filed a notice of probation violation in
    December 2008, alleging that Chavez had never reported to probation. Id. at 30. In
    March 2011, Chavez reentered the country and was subsequently arrested in Texas. Five
    months later, a probation-violation hearing was held.       An official from the Marion
    County Probation Department testified that Chavez had not reported to probation before
    his deportation or after his return to the United States. The trial court revoked Chavez’s
    probation and ordered Chavez to serve the remaining two years of his previously
    suspended sentence with 168 days of jail-time credit.
    Chavez now appeals.
    Discussion and Decision
    Chavez raises two issues on appeal, which we restate as: (1) whether the trial court
    erred when it revoked his probation because his probationary period never began and (2)
    whether the trial court erred by revoking his probation because his deportation made it
    impossible for him to report to probation.
    Probation revocation is a two-step process. Cox v. State, 
    850 N.E.2d 485
    , 488
    (Ind. Ct. App. 2006). First, the court must make a factual determination that a violation
    of a condition of probation has occurred. 
    Id.
     When a probationer admits to the violation,
    the court can proceed to the second step of the inquiry and determine whether the
    violation warrants revocation.    
    Id.
       At this step, the probationer must be given an
    opportunity to present evidence that explains and mitigates his violation. 
    Id.
    Upon the revocation of probation, a trial court may impose one or more of the
    following sanctions: (1) continue the person on probation, with or without modifying or
    3
    enlarging the conditions; (2) extend the person’s probationary period for not more than
    one year beyond the original probationary period; (3) order execution on all or part of the
    sentence that was suspended at the time of initial sentencing. 
    Ind. Code § 35-38-2-3
    (g).
    We review a trial court’s sentencing decisions for probation violations for an abuse of
    discretion. Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). An abuse of discretion
    occurs where the decision is clearly against the logic and effect of the facts and
    circumstances. 
    Id.
    Chavez first contends that his probationary period never began because he was
    deported upon release from the DOC. Specifically, Chavez contends that the trial court’s
    statements about considering suspension of Chavez’s probation, Tr. p. 23, and the CCS
    entry regarding waiver of probation, Appellant’s App. p. 9, indicate that he would only be
    subject to probation if he was not deported.        We disagree.     We have held that a
    defendant’s probationary period begins immediately after sentencing. Baker v. State, 
    894 N.E.2d 594
    , 596-98 (Ind. Ct. App. 2008). Here, the trial court clearly sentenced Chavez
    to four years in the DOC, with two years suspended to probation, and gave Chavez
    specific orders to report to the Marion County Probation Department upon his release
    from the DOC. We acknowledge that the CCS is the official record of the trial court and
    a trial court speaks through its docket. Gibson v. State, 
    910 N.E.2d 263
    , 267 (Ind. Ct.
    App. 2009). However, we consider the CCS reference at issue in conjunction with the
    trial court’s statements. Here, the court’s statements and the CCS entry at issue reflect
    the court’s recognition that it would be unable to monitor Chavez or otherwise subject
    him to probationary requirements if he left the country. It is clear that the trial court did
    4
    not intend Chavez’s probation to be contingent upon his deportation; rather that the trial
    court would consider the effect of such deportation at a later point in time. See Tr. p. 23
    (“[W]e’ll suspend that probationary time – well, I’ll consider that. I don’t know what the
    situation would be.” (emphasis added)).                   We therefore conclude that Chavez’s
    probationary period began after sentencing.
    Chavez also argues that the trial court erred by revoking his probation because his
    deportation prevented him from reporting to probation as he was ordered to do.
    However, Chavez emphasizes only his inability to report after being released from the
    DOC to immigration authorities in 2007.                  Even if Chavez was unable to report to
    probation before his deportation, he does not acknowledge his failure to report to
    probation after his return to the United States in 2011. The trial court did not abuse its
    discretion in revoking Chavez’s probation for his failure to report to probation.1
    Affirmed.
    ROBB, C.J., and BAILEY, J., concur.
    1
    The trial court also noted that Chavez committed a new crime by reentering the country illegally
    in 2011. A single violation of a condition of probation is sufficient to revoke probation. See Clark v.
    State, 
    958 N.E.2d 488
    , 495 (Ind. Ct. App. 2011). However, as the State acknowledges, notice of this
    additional violation was not given to Chavez, and as such, could not have served as the basis for
    revocation of his probation. Appellee’s Br. p. 8; see J.H. v. State, 
    857 N.E.2d 429
    , 432 (Ind. Ct. App.
    2006) (citing Bovie v. State, 
    760 N.E.2d 1195
    , 1199 (Ind. Ct. App. 2002)), trans. denied.
    Further, to the extent Chavez takes issue with the trial court’s characterization of his immigration
    status when he reentered the country in 2011, this has no bearing on our conclusions, as we do not base
    our holding on this issue.
    5
    

Document Info

Docket Number: 49A02-1110-CR-899

Filed Date: 5/21/2012

Precedential Status: Non-Precedential

Modified Date: 4/17/2021