Anthony Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 10 2015, 9:42 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Laura Raiman Attorney General of Indiana
ALCORN SAGE SCHWARTZ & Katherine Modesitt Cooper
MAGRATH, LLP Deputy Attorney General
Madison, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Davis, November 10, 2015
Appellant-Defendant, Court of Appeals Case No.
03A05-1412-CR-592
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff Heimann, Judge
Trial Court Cause No.
03C01-0309-FB-1356
Mathias, Judge.
[1]   Anthony Davis (“Davis”) pleaded guilty in the Bartholomew Circuit Court to
Class B felony possession of methamphetamine. The trial court ordered Davis
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to serve fifteen years in the Department of Correction with three years
suspended. After being released from prison, Davis was arrested on new
charges and also failed to report to probation. The trial court issued a bench
warrant for his arrest and held a revocation hearing where Davis admitted to
violating the terms of his probation. The trial court ordered Davis to serve the
remainder of his suspended three-year sentence in the Department of
Correction. On appeal, Davis argues that the trial court abused its discretion
when it considered information contained in Davis’s medical records in making
its sentencing decision.
[2]   We affirm.
Facts and Procedural History
[3]   On October 7, 2005, Davis pleaded guilty to Class B felony possession of
methamphetamine. The trial court ordered him to serve a fifteen-year executed
sentence with three years suspended to probation. He was released to probation
on November 4, 2010. The terms of Davis’s probation included, among other
conditions, reporting to his probation officer and not committing any other
offenses.
[4]   While on probation, Davis was arrested for public intoxication after a suicide
attempt on February 29, 2012. After this incident, Davis received mental health
and substance abuse counseling through Meridian Services until February 2013.
He also stopped reporting for probation at this time because his probation
officer allegedly told him that revocation of his probation was certain. After he
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failed to report on April 25, 2012, Davis’s probation officer sent a couple of
letters to the address Davis provided, but both were returned as undeliverable.
[5]   The State then filed a petition to revoke Davis’s probation on August 10, 2012.
Several days later, the trial court issued a bench warrant for Davis’s arrest.
Davis was finally discovered and arrested more than two years later, on
September 25, 2014.
[6]   The trial court held a probation revocation hearing on December 8, 2014, at
which Davis admitted to violating the terms of probation. At the hearing, Davis
requested that the trial court take judicial notice of his medical records detailing
his mental health and substance abuse counseling. He explained that he had
some medical issues that were “quite severe” and would obtain better treatment
if the trial courted permitted him to remain on probation. Tr. p. 35.
[7]   The trial court considered that Davis continued to abuse alcohol and obtained
opiates from the street, facts which were noted in his records from treatment at
Meridian Services. Davis disputed the veracity of these reports. The trial court
then ordered Davis’s probation revoked and reinstated the balance of his three-
year suspended sentence to be served in the Indiana Department of Correction.
Davis now appeals.
Discussion and Decision
[8]   Davis does not contest the trial court’s finding that he violated his probation by
his arrest for public intoxication and his failure to report to probation. Rather,
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he argues that the trial court abused its discretion when it ordered him to serve
the remainder of his previously suspended three-year sentence. We review a
trial court’s sentencing decision for a probation violation as an abuse of
discretion. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012) (citing
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.[9]   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 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. In making a determination of
whether the violation warrants revocation, the probationer must be given an
opportunity to present evidence that explains and mitigates his violation. Id.[10]   Upon 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 enlarging the conditions; (2) extend the person’s probationary
period for not more than one (1) year beyond the original probationary period;
or (3) order execution of all or part of the sentence that was suspended at the
time of initial sentencing. Alford, 965 N.E.2d at 135; Ind. Code § 35-38-2-3(h)
(1)-(3).
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[11]   Here, Davis asserts that the trial court did not focus on his public intoxication
conviction or failure to meet with his parole officer in determining his sentence,
but instead highlighted instances of alcohol abuse and “getting opiates from the
street.” Tr. p. 37. He argues that it was improper to consider these factors in
making its sentencing decision.
[12]   However, at the revocation hearing, Davis specifically asked the trial court to
take judicial notice of his previously submitted medical records from the
hospital and Meridian Services. He provided the records to the court to show
that he had medical conditions requiring treatment that should mitigate his
sentence. Accordingly, Davis invited any claimed error by presenting the
records for the trial court to review. He cannot now argue that trial court
abused its discretion by considering his medical records. “A party may not take
advantage of an error that he commits, invites, or which is the natural
consequence of [his] own neglect or misconduct.” Arthur v. State, 950 N.E.2d
343, 347 (Ind. Ct. App. 2011). See also Gamble v. State, 831 N.E.2d 178, 184
(Ind. Ct. App. 2005) (Invited errors are not subject to review by this court).
[13]   For all of these reasons, the trial court did not abuse its discretion in considering
the information in Davis’s medical records when it ordered him to serve the
remainder of his previously suspended three-year sentence.
[14]   Affirmed.
Baker, J., and Bailey, J., concur.
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