Robert A. Peterson, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 30 2017, 10:52 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert A. Peterson, Jr., October 30, 2017
Appellant-Defendant, Court of Appeals Case No.
16A04-1706-CR-1335
v. Appeal from the Decatur Superior
Court
State of Indiana, The Honorable Matthew D.
Appellee-Plaintiff. Bailey, Judge
Trial Court Cause No.
16D01-1203-FA-207
Najam, Judge.
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Statement of the Case
[1] Robert A. Peterson, Jr. appeals the trial court’s revocation of his probation. He
raises one issue on appeal, namely, whether the trial court abused its discretion
when it ordered him to serve the balance of his previously suspended sentence.
We affirm.
Facts and Procedural History
[2] On March 22, 2012, the State charged Peterson with dealing in
methamphetamine, as a Class A felony; possession of methamphetamine, as a
Class B felony; possession of precursors, as a Class C felony; possession of a
controlled substance, as a Class C felony; and resisting law enforcement, as a
Class A misdemeanor. Peterson pleaded guilty to dealing in
methamphetamine, as a Class B felony, and the State dismissed the remaining
charges. The trial court sentenced Peterson to twelve years with six years
suspended to probation.
[3] On January 27, 2017, after Peterson had served two years of his probation, the
State filed a petition to revoke his probation because it had charged Peterson in
Cause No. 16D01-1701-F4-69 (“F4-69”) with unlawful possession of a firearm
by a serious violent felon, a Level 4 felony; criminal recklessness, as a Level 6
felony; and criminal mischief, as a Class A misdemeanor. On April 27,
following a jury trial, a trial court entered judgment of conviction on the two
felony counts in F4-69. At the ensuing probation revocation hearing in the
instant cause on May 18, the trial court found that Peterson had violated the
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terms of his probation, and the court ordered Peterson to serve the balance of
his suspended sentence, six years, in the Department of Correction. This
appeal ensued.
Discussion and Decision
[4] Peterson argues that the trial court abused its discretion when, after revoking his
probation, it ordered him to serve his entire previously suspended sentence.
“Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007); see also Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied.
We review probation violation determinations and sanctions for an abuse of
discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances, or when the trial court misinterprets the law.” Id.
(citations omitted).
[5] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation actually
occurred. Id. Second, if a violation is found, then the trial court must
determine the appropriate sanctions for the violation. Id. Indiana Code Section
35-38-2-3(h) (2017) provides:
If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) or more of the following sanctions:
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(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.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Our Supreme Court has held that this statute “permits judges to sentence
offenders using any one of or any combination of the enumerated powers.”
Prewitt, 878 N.E.2d at 187. A single violation of a condition of probation is
sufficient to permit the trial court to revoke probation. Treece, 10 N.E.3d at 59.
[6] Here, Peterson does not dispute that the trial court had authority to sanction
him pursuant to Indiana Code Section 35-38-2-3(h) given his convictions on
two felony counts in F4-69 while on probation. Rather, Peterson maintains
that the trial court abused its discretion when it failed to take into account the
following alleged mitigating factors in imposing sanctions: his twenty-eight-
year sentence for the two felony convictions in F4-69; his successful completion
of a community transition program; and his successful completion of two years
of his probation.
[7] While probationers must be given the opportunity to present mitigating factors,
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), “trial courts are not required to
balance aggravating or mitigating circumstances when imposing [a] sentence in
a probation revocation proceeding,” Treece, 10 N.E.3d at 59 (quotation
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omitted). This stems from the fact that a probation revocation hearing does not
involve the imposition of a sentence, but is a proceeding to consider the
execution of a sentence already imposed. See Mitchell v. State, 619 N.E.2d 961,
963-64 (Ind. Ct. App. 1993), overruled on other grounds by Patterson v. State, 659
N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995). So long as the proper procedures
have been followed in conducting a probation revocation, a trial court has
discretion to order execution of a suspended sentence upon a finding of a
violation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).
Therefore, we cannot say that the trial court abused its discretion when it
refused to give weight to the mitigating factors Peterson raised.
[8] The logic and effect of the facts and circumstances in this case support the trial
court’s sanction for Peterson’s probation violation. At the time of the
revocation hearing, Peterson’s criminal history included five felonies and five
misdemeanors. And Peterson’s probation violation was significant: Peterson
discharged a firearm “toward a vehicle” in a mobile home park where other
people were present. Appellant’s App. Vol. 2 at 76. The trial court was well
within its discretion to order Peterson to serve his entire previously suspended
sentence. See Prewitt, 878 N.E.2d at 188 (holding trial court did not abuse its
discretion in ordering defendant to serve previously suspended sentence when
he had multiple probation violations, a past criminal history, and an inability to
comply with ordered programs).
[9] Affirmed.
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Kirsch, J., and Brown, J., concur.
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