William Mills, II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Jul 28 2016, 9:38 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Mills, II, July 28, 2016
Appellant-Defendant, Court of Appeals Case No.
15A04-1602-CR-243
v. Appeal from the Dearborn Superior
Court
State of Indiana, The Hon. Sally A. McLaughlin,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 15D02-1307-
FC-45
Bradford, Judge.
Case Summary
[1] Following his conviction for Class C felony intimidation, Appellant-Defendant
William Mills, II, was sentenced to eight years of incarceration with four years
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and 180 days suspended to probation. In August of 2015, Appellee-Plaintiff the
State of Indiana filed a notice of violation of probation in which it alleged that
Mills refused to submit to a urine drug screen and left the probation office
without permission. Mills admitted the violations and the trial court revoked
ten days of his suspended sentence.
[2] In November of 2015, the State filed a second notice of violation of probation in
which it alleged that Mills consumed morphine without a valid prescription.
After Mills admitted the second violation, the trial court revoked two years of
Mills’s remaining probation. Mills contends that the trial court abused its
discretion in revoking two years of his remaining probation. Because we
disagree, we affirm.
Facts and Procedural History
[3] In December of 2013, Mills pled guilty to Class C felony intimidation and was
sentenced to eight years of incarceration with four years and 180 days
suspended to probation. Mills’s conviction stemmed from an incident where he
pulled a knife on and pepper-sprayed a woman who confronted him about
stealing shoes from her son. On August 24, 2015, the State filed a notice of
probation violation, alleging that Mills refused to submit to a urine drug screen
and fled the probation office without permission. Mills admitted to the
allegations and was ordered to serve ten days of his suspended sentence and
return to probation afterwards.
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[4] On November 23, 2015, the State filed a second notice of probation violation,
alleging that Mills had tested positive for morphine without having a valid
prescription. On December 22, 2015, Mills admitted the violation. On January
7, 2015, the trial court ordered that Mills serve two years of his suspended
sentence, leaving a remaining balance of two years and 170 days.
Discussion and Decision
[5] 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). Proof of a single violation of 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).
[6] Mills contends that the trial court abused its discretion in ordering that he serve
two years of his suspended sentence. Indiana Code subsection 35-38-2-3(h)(3)
allows 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.” The Indiana Supreme Court has held that “a trial court’s
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sentencing decisions for probation violations are reviewable using the abuse of
discretion standard[,]” explaining:
Once 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).
[7] 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).
[8] Mills argues that the trial court should have revoked no more than one year of
his probation instead of two. Under the circumstances of this case, Mills has
failed to establish an abuse of discretion. There is no allegation that the proper
procedures were not followed in this case, and Mills admitted that he violated
the terms of his probation by using morphine without a valid prescription. It is
worth noting that the instant violation represents Mills’s second probation
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violation in a three-month period, indicating that he did not benefit from the
trial court’s earlier, more lenient treatment.
[9] Moreover, Mills’s history with the juvenile and criminal justice systems
indicates that the solutions attempted to this point have not been effective in
deterring him from further criminal activity. Mills, twenty-eight years old at the
time of the revocation hearing, has juvenile adjudications for battery resulting
in bodily injury, criminal mischief, and resisting law enforcement. Mills’s adult
criminal history includes convictions for theft in 2007, strangulation in 2008,
and invasion of privacy in 2009. By way of explaining its decision to partially
revoke Mills’s probation, the trial court observed that Mills “has violent
tendencies as well as substance abuse issues that need to be addressed and can
best be addressed through a penal institution.” Tr. p. 22. Given Mills’s history
of violence and substance abuse, we do not find fault with the trial court’s
rationale. Mills has failed to establish an abuse of discretion.
[10] We affirm the judgment of the trial court.
Pyle, J., and Altice, J., concur.
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