James L. Morgan v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Dec 31 2012, 11:23 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RYAN D. BOWER GREGORY F. ZOELLER
Allen Allen & Brown Attorney General of Indiana
Salem, Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES L. MORGAN, )
)
Appellant-Defendant, )
)
vs. ) No. 88A01-1206-CR-254
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WASHINGTON SUPERIOR COURT
The Honorable Frank Newkirk, Jr., Judge
Cause No. 88D01-0812-FC-543
December 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
James Morgan appeals the trial court’s order imposing sanctions following the
revocation of his probation. We affirm.
ISSUE
Morgan presents one issue, which we restate as: whether the trial court abused its
discretion by ordering him to serve thirty months of his previously suspended sentence
and by extending his probation by six months.
FACTS AND PROCEDURAL HISTORY
In December 2008, the State charged Morgan with Class C felony criminal
confinement, Class D felony strangulation, and Class A misdemeanor battery. In March
2009, the parties filed a plea agreement in which Morgan agreed to plead guilty to Class
C felony criminal confinement in the underlying cause here as well as misdemeanor
battery and trespass in two other cause numbers. In exchange, the State agreed to dismiss
the remaining charges. In June 2009, the trial court accepted the plea agreement and
sentenced Morgan in accordance with that agreement to an aggregate term of four years
with three years suspended to probation.
In February 2011, the Washington County Probation Department filed a petition to
revoke Morgan’s suspended sentence for violating the law and consuming alcohol in
violation of the terms of his probation. Specifically, the petition alleged that Morgan had
been charged with Class D felony and Class A misdemeanor battery in Harrison County
and that he had a blood alcohol content of 0.13 at the time of his arrest. Morgan, who
had pleaded guilty to the Harrison County battery charges, admitted both violations. The
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court ordered Morgan to serve thirty months of his previously suspended sentence in the
Indiana Department of Correction and extended his probation by six months. Morgan
now appeals.
DISCUSSION AND DECISION
Morgan contends that the trial court abused its discretion by ordering him to serve
thirty months of his previously suspended sentence and by extending his probation by six
months. A trial court’s sentencing decisions for probation violations are reviewable for
an abuse of discretion. 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. A trial court may order execution of all or part of a suspended
sentence upon a violation of probation. Ind. Code § 35-38-2-3(g)(3) (2010); Prewitt, 878
N.E.2d at 186-87. The court may also extend the probationary period for not more than
one year beyond the original probationary period. Ind. Code § 35-38-2-3(g)(2); Prewitt,
878 N.E.2d at 186-87.
Three years of Morgan’s original sentence were suspended to probation. He
admitted violating probation by committing Class D felony and Class A misdemeanor
battery and by consuming alcohol. We note that the Harrison County battery offenses are
similar in nature to the crimes to which he originally pleaded guilty. Although Morgan
has not included in the record on appeal the presentence investigation report considered
during his revocation proceeding, statements made by the State during the sentencing
hearing reveal that Morgan has previous convictions for confinement and battery. The
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trial court was therefore well within its discretion to order execution of thirty months of
his previously suspended sentence and to extend his probation by six months.
Morgan nonetheless argues that the trial court should have considered his guilty
plea to the Harrison County battery offenses and his admission that he violated his
probation as significant mitigating circumstances. A probationer who admits allegations
of probation violations must still be given an opportunity to offer mitigating evidence
suggesting that the violation does not warrant revocation. Woods v. State, 892 N.E.2d
637, 640 (Ind. 2008). However, Section 35-38-2-3 does not require a trial court to
balance aggravators and mitigators when imposing a sentence in a probation revocation
proceeding. Mitchell v. State, 619 N.E.2d 961, 963-64 (Ind. Ct. App. 1993), overruled in
part on other grounds by Patterson v. State, 659 N.E.2d 220, 222-23 & n.2 (Ind. Ct. App.
1995) (holding that probationer’s mental state must be considered in dispositional
determination of probation revocation proceeding).
Morgan also invokes Indiana Appellate Rule 7(B) and argues that the trial court’s
imposition of thirty months was inappropriate in light of the nature of the offense and the
character of the offender. He asks us to revise the trial court’s sanction downward.
Review and revision of sentences pursuant to Rule 7(B), however, does not apply to
sanctions imposed in probation revocation proceedings. Prewitt, 878 N.E.2d at 188
(whether court’s sanction is inappropriate in light of nature of offense and character of
offender “is not the correct standard to apply when reviewing a sentence imposed for a
probation violation”).
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We therefore conclude that the trial court did not abuse its discretion in its
imposition of sanctions upon the revocation of Morgan’s probation.
CONCLUSION
For the reasons stated, we affirm.
Affirmed.
BAILEY, J., and BARNES, J., concur.
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