Terrell Roberts v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 10 2018, 11:08 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrell Roberts, October 10, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1249
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Bradley B. Jacobs,
Appellee-Plaintiff. Judge
Trial Court Cause No.
10C02-1208-FA-63
Pyle, Judge.
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Statement of the Case
[1] Terrell Roberts (“Roberts”) appeals the revocation of his probation, arguing
that the trial court abused its discretion by ordering him to serve his previously
suspended sentence. Finding no error, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion by ordering Roberts to
serve his previously suspended sentence.
Facts
[3] In August 2012, the State charged Roberts with Class A felony dealing in a
narcotic drug (heroin weighing three grams or more), Class C felony possession
of a narcotic drug, and Class D felony maintaining a common nuisance. In
June 2017, Roberts entered into a plea agreement and pled guilty to the lesser
offense of Class D felony possession of a narcotic drug in exchange for the
State’s dismissal of the remaining charges.1 The parties also agreed that Roberts
would receive a sentence of 1,095 days, with 180 days executed in the Indiana
Department of Correction and 915 days suspended to probation.2 The trial
1
The chronological case summary indicates that the delay between the filing of the initial charges and
Roberts’ guilty plea was due, in part, to Roberts being incarcerated in Kentucky in 2013, the withdrawal of
his appointed counsel in 2015, his failure to appear for a pretrial conference in 2016 that resulted in the
issuance of an arrest warrant, and various continuances.
2
In other words, the parties agreed that Roberts would serve a sentence of three (3) years, with six (6) months
executed and two and one-half (2½) years suspended to probation.
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court accepted Roberts’ guilty plea and imposed the sentence set out in the plea
agreement.3
[4] On February 8, 2018, the State filed a notice of probation violation, alleging
that Roberts had violated his probation by failing to report for scheduled
probation appointments as directed on December 12, 2017 and January 28,
2018. The State also noted that Roberts “ha[d] absconded from probation
supervision[.]” (App. Vol. 2 at 75) (changed from all uppercase letters). The
State attached to the revocation petition a copy of the violation report from
Roberts’ supervising probation officer in Kentucky. The report indicated that
Roberts was unemployed and that the probation officer was unable to locate
Roberts, leading the probation officer to believe that Roberts was “knowingly,
willingly[,] and consciously concealing [his] whereabouts and absconding
supervision.” (App. Vol. 2 at 78).
[5] Shortly thereafter, on March 13, 2018, the State filed an amended notice of
probation violation, adding an additional probation revocation allegation.
Specifically, the State alleged that Roberts had committed the following crimes
in February 2018 while on probation: (1) Level 6 felony unlawful possession or
use of a legend drug; (2) Class A misdemeanor possession of a controlled
substance; and (3) Class A misdemeanor resisting law enforcement. The State
attached to the amended revocation petition a copy of the charging information
3
Roberts lived in Kentucky, and, pursuant to an interstate compact, his probation was supervised by a
probation department in Jefferson County, Kentucky.
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for the three pending charges and the habitual offender allegation filed against
him in the new criminal cause.
[6] The trial court held a probation revocation hearing in April 2018. At the
beginning of the hearing, Roberts’s counsel stated that they were there for an
“open admission[.]” (Tr. 18). Roberts stated that he knew he had an obligation
to report to his probation officer and admitted that he had not reported to
probation as alleged in the petition to revoke. He stated that his failure to
report was due to “a miscommunication on [his] behalf” and a “conflicting”
work schedule. (Tr. 19).
[7] When the State mentioned Roberts’s pending criminal charges, Roberts’
counsel stated that he did not believe that those pending charges were part of
the revocation petition. The State confirmed that the charges were included in
the amended revocation petition. The trial court then asked the State if it was
“ok with proceeding on the . . . admission as it was[,]” and the prosecutor
stated that he “just wanted the Court to be aware that there’s a pending case.”
(Tr. 20).
[8] The trial court then proceeded to the parties’ recommended sanction based on
Roberts’s admission that he had violated probation. The prosecutor
recommended that the trial court order Roberts to serve his previously
suspended 915-day sentence, and the probation officer agreed. Roberts’ counsel
asked the trial court to just terminate Roberts’ probation “as unsuccessful” and
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allow Roberts to “deal with the new issues.” (Tr. 21). The trial court rejected
Roberts’ recommendation, stating:
I’ve gotta . . . lean toward the State on this one. And . . . there’s
no reason for me to deviate from what I generally do, unless
there’s something egregious with the [probation officer’s]
recommendation. It looks like he hadn’t been on probation very
long before he immediately violated, well, 6 months.
(Tr. 21-22). Based on Roberts’ admission that he had violated probation, the
trial court revoked Roberts’ probation and ordered him to serve his previously
suspended sentence. The trial court also gave Roberts credit for time served
and ordered him to serve purposeful incarceration. Roberts now appeals.
Decision
[9] Roberts does not challenge the trial court’s determination that he violated
probation. Instead, he argues that the trial court abused its discretion by
ordering him to serve the entirety of his previously suspended sentence based on
one probation violation. Roberts also contends that the trial court’s order for
him to serve his previously suspended sentence violated the Proportionality
Clause in Article I, § 16 of the Indiana Constitution, which provides, in relevant
part, that: “All penalties shall be proportioned to the nature of the offense.” 4
He acknowledges that our appellate courts have not applied this state
constitutional provision to probation revocation; nevertheless, he contends that
4
Roberts contends that his probation violation was an “offense” and that the sanction to serve his previously
suspended sentence was a “penalty.”
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a trial court’s discretion to select a sanction for a defendant’s probation
violation should be limited by Article I, § 16 of the Indiana Constitution. We
disagree.
[10] Our supreme court has held that “a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard.”
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citing Sanders v. State, 825
N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied) (rejecting a defendant’s
argument that his probation violation sanction should be reviewed under the
inappropriate standard in Indiana Appellate Rule 7(B)). Probation serves as an
“alternative[] to commitment to the Department of Correction[,]” and is “made
at the sole discretion of the trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind.
1999), reh’g denied. “Because probation is a matter of grace and a conditional
liberty that is a favor, not a right, . . probationers do not receive the same
constitutional rights that defendants receive at trial[.]” State v. I.T., 4 N.E.3d
1139, 1146 (Ind. 2014) (internal quotation marks and citations omitted). See
also Castillo v. State, 67 N.E.3d 661, 665, 666 (Ind. Ct. App. 2017) (explaining
that a defendant has due process rights in regard to the revocation of probation,
not for the ordering of sanctions following revocation of probation), trans.
denied.
[11] A trial court determines the conditions of probation and may revoke probation
if the conditions are violated. Prewitt, 878 N.E.2d at 188; see also IND. CODE §
35-38-2-3(a). Indeed, violation of a single condition of probation is sufficient to
revoke probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007).
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Upon determining that a probationer 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 initial sentencing.” IND. CODE § 35-38-2-3(h)(3).
“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, 878 N.E.2d at 188. “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 to future defendants.” Id. As a result, we
review a trial court’s sentencing decision from a probation revocation for an
abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956). An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Id.[12] Roberts contends that the trial court abused its discretion by ordering him to
serve his previously suspended sentence because the trial court did not
sufficiently set forth its reasons for imposing the sanction it chose. We reject
this argument. We have explained that a trial court is “not required to provide
specific reasons for imposing the [probation revocation] sanction.” Castillo, 67
N.E.3d at 665, 666. The record reveals that the trial court had a sufficient basis
for its decision to order Roberts to serve his previously suspended sentence.
Here, Roberts was initially charged with Class A felony dealing in narcotic drug
(heroin weighing three grams or more), Class C felony possession of a narcotic
drug, and Class D felony maintaining a common nuisance. The trial court
showed Roberts leniency when it accepted his guilty plea to the lesser offense of
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Class D felony possession of a narcotic drug and imposed a sentence, in
accordance with his plea agreement, that allowed him to serve the clear
majority of his three-year sentence on probation. Roberts, however,
squandered this opportunity when he failed to comply with the requirements of
probation within the first six months of his two and one-half years of probation.
Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Roberts to serve his previously suspended sentence. For
the foregoing reasons, we affirm the trial court’s revocation of Roberts’
probation.
[13] Affirmed.
Najam, J., and Crone, J., concur.
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