Irwin McNeil Scott v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 27 2017, 9:15 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery Haupt Curtis T. Hill, Jr.
Law Office of Jeffery Haupt Attorney General of Indiana
South Bend, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Irwin McNeil Scott, December 27, 2017
Appellant-Respondent, Court of Appeals Case No.
71A04-1706-CR-1222
v. Appeal from the St. Joseph Superior
Court
State of Indiana, The Hon. Elizabeth Hurley, Judge
Trial Court Cause No.
Appellee-Petitioner.
71D08-1508-F5-178
Bradford, Judge.
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Case Summary
[1] After Appellant-Respondent Irwin Scott pled guilty to carrying a handgun
without a license in cause number 71D08-1508-F5-178 (“Cause No. 178”), the
trial court suspended three years of his six-year sentence to probation. Less
than a year later, Scott violated the terms of his probation in Cause No. 178 by
committing three new felonies in cause number 71D08-1610-F3-64 (“Cause No.
64”). Following Scott’s guilty plea to those felonies and his admission that their
commission violated the terms of his probation, the trial court ordered that he
serve three years in community corrections followed by three years of probation
in Cause No. 178, to be served after completion of his sentence in Cause No.
64. Scott contends that the trial court abused its discretion in ordering
community corrections followed by probation. Because we disagree, we affirm.
Facts and Procedural History
[2] On December 14, 2015, in Cause No. 178, Scott pled guilty to Level 5 felony
carrying a handgun without a license, and the trial court subsequently imposed
a six-year, suspended sentence and ordered three years of probation. On
October 12, 2016, while operating a vehicle under the influence of illegal
substances, Scott fled from police and crashed the vehicle into a pole, flipping
the vehicle over. Scott fled the scene without rendering aid to two eight-year-
old passengers who had sustained serious bodily injury in the crash.
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[3] On October 14, 2016, the State charged Scott in Cause No. 64 with two counts
of Level 3 felony failure to remain at the scene of an accident and Level 6
felony resisting law enforcement. On March 27, 2017, Scott pled guilty as
charged in Cause No. 64 and admitted that he had violated the terms of his
probation in Cause No. 178. On May 10, 2017, the trial court sentenced Scott
in Cause No. 64 to twenty-two years of incarceration. In Cause No. 178, the
trial court ordered Scott to serve three years of his previously-suspended
sentence in community corrections, followed by three years of probation, to be
served upon completion of his sentence in Cause No. 64.
Discussion and Decision
[4] Scott argues that the trial court abused its discretion in ordering three years in
community corrections, followed by three years of probation, for violating the
terms of his probation in Cause No. 178. Probation is a “matter of grace” and a
“conditional liberty that is a favor, not a right.” Marsh v. State, 818 N.E.2d 143,
146 (Ind. Ct. App. 2004) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.
1999)). We review a trial court’s probation revocation for an abuse of
discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans.
denied. If the trial court finds that the person violated a condition of probation,
it may order the execution of any part of the sentence that was suspended at the
time of initial sentencing. Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004); see
also Ind. Code § 35-38-2-3(h)(3) (allowing a trial court, in case of a violation of
the terms of probation, to “[o]rder execution of all or part of the sentence that
was suspended at the time of initial sentencing.”). Proof of a single violation of
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the conditions of probation is sufficient to support the decision to revoke
probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).
[5] The Indiana Supreme Court has explained that
[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. If this discretion were not
afforded to trial courts and sentences were scrutinized too
severely on appeal, trial judges might be less inclined to order
probation to future defendants.
Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).
[6] An abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Id. As long as the proper procedures have
been followed in conducting a probation revocation hearing, “the trial court
may order execution of a suspended sentence upon a finding of a violation by a
preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.
App. 1999). The “[c]onsideration and imposition of any alternatives to
incarceration is a ‘matter of grace’ left to the discretion of the trial court.”
Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996).
[7] Under the circumstances of this case, Scott has failed to establish an abuse of
discretion. There is no allegation that the proper procedures were not followed,
and Scott admitted that he violated the terms of his probation by committing
three new felonies. Moreover, Scott’s criminal history indicates that the
solutions attempted to this point, including probation, community corrections,
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and incarceration, have not been effective in deterring him from further
criminal activity. The twenty-seven-year-old Scott has previous convictions for
Class C misdemeanor minor consuming alcohol, Class B felony burglary, what
seems to be Class A misdemeanor resisting law enforcement, Class C
misdemeanor driving without ever having had a license, and Class D felony
unlawful possession or use of a legend drug or precursor. Despite this history
and previous attempts at leniency, Scott’s tendency to commit serious crimes is,
if anything, becoming more pronounced. Given Scott’s admission to violating
the terms of his probation and the proven failure of leniency to reform him, we
do not find fault with the trial court’s imposition of three years of community
corrections followed by three years of probation. Scott has failed to establish an
abuse of discretion.
[8] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
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