Anthony Taylor v. State of Indiana ( 2014 )

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 Mar 21 2014, 11:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW M. EADS GREGORY F. ZOELLER
Lux & Lux, P.A. Attorney General of Indiana
Shelbyville, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY TAYLOR, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1307-CR-292
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Norman Curry, Sr. Judge
Cause No. 73D02-1107-FD-144
March 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Anthony Taylor appeals the order that he be incarcerated for the remainder of his
suspended sentence following the revocation of his probation. He argues the trial court
abused its discretion when it ordered him to serve his entire suspended sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 13, 2011, the State charged Taylor with Class D felony operating a vehicle
while intoxicated with a prior conviction;1 Class A misdemeanor operating a vehicle while
intoxicated;2 and Class C misdemeanor operating a vehicle with alcohol concentration
equivalent to at least .08 but less than 0.15.3 On November 10, 2011, Taylor pled guilty to
Class D felony operating a vehicle while intoxicated with a prior conviction. The trial court
entered a judgment of conviction and sentenced Taylor to 545 days incarceration with 535
days suspended to probation. As conditions of his probation, Taylor was ordered to attend
and complete the MADD Victim Impact Panel and pay associated costs, complete sixty hours
of community service, and participate in the court’s alcohol and drug program (“ADA
Progam”) and pay all associated fees.
On January 9, 2013, the State filed a petition to revoke probation after Taylor was
unsuccessfully discharged from the ADA program, failed to complete community service
hours, and did not pay required fees. On May 7, 2013, the State filed an addendum to the
petition to revoke probation alleging Taylor had been charged with operating a vehicle while
1
Ind. Code § 39-30-5-3.
2
Ind. Code § 9-30-5-2.
3 Ind. Code § 9-30-5-1.
2
intoxicated in Marion County on January 15, 2013.
After Taylor admitted that he violated his probation by being unsuccessfully
discharged from the ADA program, failing to complete his community service hours, failing
to pay imposed fees, and being charged with a new offense of operating a vehicle while
intoxicated, the trial court found Taylor had violated his probation. It inquired about his
criminal history and failure to fulfill the conditions of his probation, and then ordered Taylor
to serve his entire suspended sentence.
DISCUSSION AND DECISION
A revocation of probation is reviewed on appeal only for an abuse of discretion.
Podlusky v. State, 839 N.E.2d 198, 200 (Ind. Ct. App. 2005). An abuse of discretion occurs
where the decision is clearly against the logic and effect of fact and circumstances. Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007). On review, we consider only the evidence most
favorable to the revocation and do not reweigh that evidence or judge the credibility of
witnesses. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008).
Taylor first argues the trial court abused its discretion because it did not set the matter
for a dispositional hearing in order to conduct a pre-sentence investigation and to allow him
to offer mitigating circumstances. However, when a probationer admits violations, no
evidentiary hearing is necessary. Terrell, 886 N.E.2d at 101. Nor is the trial court obligated
to hold a separate dispositional hearing or have the State conduct a pre-sentence
investigation. See Boyd v. State, 481 N.E.2d 1124, 1127 (Ind. Ct. App. 1985) (holding those
procedural steps not required when determining whether to order execution of all or part of
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suspended sentence). As the law does not require the trial court to hold a hearing or obtain a
pre-sentence investigation, we cannot find an abuse of discretion in the trial court’s failure to
take those steps.4
Taylor also argues the trial court should have explained why it was imposing the entire
suspended sentence. The trial court noted that Taylor “admits violating probation by being
unsuccessfully discharged from the ADA Program, failing to complete community service
hours and by failing to pay associated fees. The Defendant also admits that he has been
charged with OVWI in Marion County, IN.” (App. at 14.) As Taylor did not satisfy
numerous conditions of probation and was arrested for the same crime for which he was on
probation, imposition of his entire suspended sentence was not error. See Ind. Code § 35-38-
2-3(h) (the trial court has discretion to impose the entirety of a suspended sentence when
probation is revoked). There was no abuse of discretion in the order that Taylor serve the
remainder of his suspended sentence.
CONCLUSION
Taylor has not demonstrated the trial court abused its discretion by ordering Taylor to
be incarcerated for the remainder of his suspended sentence upon revocation of his probation.
Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and RILEY, J., concur.
4
To the extent Taylor asserts a dispositional hearing would have permitted him to offer evidence of mitigators,
we note the record demonstrates counsel questioned him at the hearing at which he admitted the probation
violation, and he has not explained why he could not also have testified about mitigators then.
4