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

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.
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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
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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,
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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.”).
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[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
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“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.
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