James Shead, Jr. v. State of Indiana (mem. dec.) ( 2021 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
    this Memorandum Decision shall not be
    Jan 13 2021, 8:34 am
    regarded as precedent or cited before any
    court except for the purpose of establishing                                           CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                               Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Scott H. Duerring                                        Theodore E. Rokita
    South Bend, Indiana                                      Attorney General of Indiana
    Myriam Serrano
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    James Shead, Jr.,                                        January 13, 2021
    Appellant-Defendant,                                     Court of Appeals Case No.
    19A-CR-658
    v.                                               Appeal from the St. Joseph Superior
    Court
    State of Indiana,                                        The Honorable John M. Marnocha,
    Appellee-Plaintiff.                                      Judge
    The Honorable Elizabeth A. Hardtke,
    Magistrate
    Trial Court Cause No.
    71D02-1710-F3-67
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021         Page 1 of 6
    Case Summary
    [1]   James Shead, Jr. (“Shead”) appeals, arguing that the trial court abused its
    discretion by revoking his probation and ordering him to serve the balance of
    his suspended sentence in the Indiana Department of Correction (“DOC”).
    [2]   We affirm.
    Facts and Procedural History
    [3]   In March 2018, Shead was sentenced to ten years in the DOC for Level 3 felony
    Aiding, Inducing, or Causing Armed Robbery. The ten-year sentence was fully
    suspended and Shead was placed on probation for a period of five years.
    [4]   Shead signed a document acknowledging the terms of his probation. That
    document stated that “[v]iolation of any law may be considered a violation of
    probation” and it specified that Shead “may not purchase, use, possess, or exert
    control over a firearm or other dangerous device.” App. Vol. 2 at 42.
    [5]   In April 2018, the State filed a petition seeking the revocation of Shead’s
    probation and the imposition of Shead’s suspended sentence. The State alleged
    that Shead had failed to submit to urine screens. The State later filed an
    addendum to its petition to revoke, alleging that Shead had committed three
    criminal offenses for which Shead was charged in a separate cause.
    [6]   During the pendency of the petition to revoke, a trial was held in the separate
    cause. In that cause, Shead was ultimately convicted of a single criminal
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 2 of 6
    offense: Level 4 felony Unlawful Possession of a Firearm by a Serious Violent
    Felon. Thereafter, the court held a combined hearing regarding revocation in
    the instant cause and sentencing in the other cause. At the hearing, the court
    noted that the State initially sought revocation “due to some positive urine drug
    screens” but later alleged that Shead had committed additional criminal
    offenses. Tr. Vol. 3 at 5. The court stated that it was inclined to take judicial
    notice of Shead’s conviction in the other cause and find that Shead violated the
    conditions of his probation. The State agreed with the proposed approach and
    there was no formal presentation of evidence regarding the State’s allegations.
    [7]   The court ultimately found that Shead “violated a term of probation because
    [he] committed the new offense in the Level 4 felony.” Id. at 6. The court later
    stated that it was “revoking [Shead’s] status on probation based on the new
    conviction[.]” Id. at 28. As a consequence for the violation, the court ordered
    Shead to serve the balance of his previously suspended ten-year sentence.
    [8]   Shead now appeals.
    Discussion and Decision
    [9]   Placement on probation “is a matter of grace and a conditional liberty that is a
    favor, not a right[.]” State v. I.T., 
    4 N.E.3d 1139
    , 1146 (Ind. 2014) (quoting Cox
    v. State, 
    706 N.E.2d 547
    , 549 (Ind. 1999)). Moreover, “[o]nce 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,
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 3 of 6
    
    878 N.E.2d 184
    , 188 (Ind. 2007). We review the trial court’s probation-related
    decisions for an abuse of discretion, which occurs when the court’s decision is
    clearly against the logic and effect of the facts and circumstances or when the
    court has misapplied the law. Heaton v. State, 
    984 N.E.2d 614
    , 616 (Ind. 2013).
    [10]   If a person violates a condition of probation—even a single condition—the trial
    court “may revoke . . . probation.” 
    Ind. Code § 35-38-2-3
    (a). Nevertheless, the
    court is not obligated to revoke the person’s probation. See I.C. § 35-38-2-3(h).
    Rather, upon a violation of probation, the court may (1) “[c]ontinue the person
    on probation, with or without modifying or enlarging the conditions”; (2)
    “[e]xtend the person’s probationary period for not more than one (1) year
    beyond the original probationary period”; and/or “[o]rder execution of all or
    part of the sentence that was suspended at the time of initial sentencing.” Id.
    [11]   “Probation revocation is a two-step process.” Heaton, 984 N.E.2d at 616. First,
    the court must determine whether the person violated a condition of probation.
    Id. Second, if the court identifies a violation, it must determine the appropriate
    consequence. Id. In imposing a consequence, the court does not abuse its
    discretion so long as it complies with Indiana Code Section 35-38-2-3 and
    selects among the enumerated consequences. See Wann v. State, 
    997 N.E.2d 1103
    , 1106 (Ind. Ct. App. 2013) (“Generally speaking, as long as the trial court
    follows the procedures outlined in Indiana Code Section 35-38-2-3, the trial
    court may properly order execution of a suspended sentence.”).
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 4 of 6
    [12]   Here, Shead does not dispute that he violated a condition of his probation by
    committing the criminal offense of Unlawful Possession of a Firearm by a
    Serious Violent Felon. Rather, he argues that the court “abused its discretion in
    imposing the entire previously suspended sentence . . . for a single violation of
    probation[.]” Br. of Appellant at 4. According to Shead, because he “had no
    other probation violations” and “was reporting to his probation officer as
    instructed and was gainfully employed,” the court abused its discretion by
    imposing the balance of Shead’s previously suspended sentence. Id. at 7.
    [13]   Because Shead violated a condition of his probation by committing a criminal
    offense, Indiana Code Section 35-38-2-3(h) authorized the trial court to “[o]rder
    execution of all or part of the sentence that was suspended at the time of initial
    sentencing.” The court was authorized to do so without regard for any alleged
    aggravating or mitigating circumstances. See Porter v. State, 
    117 N.E.3d 673
    ,
    675 (Ind. Ct. App. 2018) (noting that the applicable statute “imposes no
    requirement upon the trial court to balance aggravating and mitigating
    circumstances” when imposing a consequence for a probation violation).
    [14]   Shead also argues that the court “improperly considered probation violation
    allegations that were not a part of the evidence submitted during the evidentiary
    portion of the proceedings.” Br. of Appellant at 6. Moreover, Shead contends
    that the court’s oral statement “detailing the reasons for imposing execution of
    the entire . . . suspended sentence is unclear” and it is “very difficult to discern
    what evidence was considered by the court” in selecting a consequence for the
    probation violation. Id. at 7. Shead points out that the court’s written order
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 5 of 6
    “does not specify any reason” for revoking the balance of Shead’s suspended
    sentence. Id. Furthermore, although Shead acknowledges that a court “is not
    required to make a detailed sentencing statement when reinstating a portion of
    an already imposed sentence,” he argues that “common sense would seem to
    dictate that if a defendant has a right to appeal such a decision that the record
    contain a clear sense as to why a trial court made such a decision to assist the
    appellate court in determining if there was an abuse of discretion.” Id. at n.1.
    [15]   We disagree that the record is unclear as to the grounds for revoking probation.
    At the hearing, the court plainly found that Shead “violated a term of probation
    because [he] committed the new offense in the Level 4 felony.” Tr. Vol. 3 at 6.
    The trial court later stated that it was “revoking [Shead’s] status on probation
    based on the new conviction[.]” Id. at 28. Although the court referred to other
    allegations in the petition, its decision to revoke Shead’s probation was clearly
    based on the firearm-related offense. Furthermore, even if a court considers
    improper grounds for revocation, generally, where a violation is “alleged and
    proved, revocation may be sustained on that ground alone[.]” Jaynes v. State,
    
    437 N.E.2d 137
    , 140 n.3 (Ind. Ct. App. 1982). Having reviewed the court’s
    remarks at the hearing, we discern no reason to depart from this general rule.
    [16]   The trial court did not abuse its discretion in revoking Shead’s probation and
    ordering him to serve the balance of his previously suspended sentence.
    [17]   Affirmed.
    Robb, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 6 of 6
    

Document Info

Docket Number: 19A-CR-658

Filed Date: 1/13/2021

Precedential Status: Precedential

Modified Date: 1/13/2021