Omar G. Burton v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Feb 14 2013, 8:32 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:
JANE ANN NOBLITT GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
OMAR G. BURTON, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1206-CR-263
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Chris D. Monroe, Judge
Cause No. 03D01-9605-CF-454
February 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Omar Burton appeals the sentence imposed by the trial court following the
revocation of his probation. We affirm.
ISSUE
Burton raises one issue, which we restate as whether the trial court abused its
discretion by ordering him to serve the balance of his suspended sentence following the
revocation of his probation.
FACTS AND PROCEDURAL HISTORY
In 1996, Burton was convicted of Class B felony burglary and Class D felony
theft. The trial court imposed concurrent sentences of twenty years for the burglary and
three years for the theft, with five years of the aggregate sentence suspended to probation.
The court noted that Burton was being sentenced in three other cause numbers on the
same day and ordered all of the sentences to run consecutively in a specific sequence,
with the sentence in this cause to be served third in line.
In November 2008, Burton filed a motion under all four cause numbers to set a
hearing and modify his sentences. The trial court ordered Burton to clarify which
sentences had been served and which sentences he sought to modify. Burton informed
the court that he was currently serving the executed sentence in this cause, with two and a
half years left to serve, and that he still had one more executed sentence and two terms of
probation to complete. At a hearing in March 2009, the court modified Burton’s sentence
in this cause by suspending the balance of his sentence and by placing him on probation
for four years, consecutive to the probation ordered in the last cause number to be served.
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The State filed a petition to revoke Burton’s probation in June 2010. In the
petition, the State alleged that Burton failed to report to two probation appointments, left
the state without obtaining permission from the court and was currently residing in
Wisconsin, failed to report an address change, failed to report he had contacts with
Wisconsin police, and associated with individuals on probation. At a hearing in April
2011, Burton admitted that he violated his probation by failing to report to the
appointments, leaving the state without permission, and failing to report his address
change. The court gave Burton credit for time served, returned him to probation, and
ordered him to pay the extradition costs.
One month later in May 2011, Burton entered into an administrative agreement
with the probation department in which he admitted that he violated his probation by
using methamphetamine and agreed to be placed in a residential program.
In November 2011, the State filed a second petition to revoke Burton’s probation.
In the petition, the State alleged that Burton admitted to using methamphetamine,
benzodiazepines, and marijuana in October, left his home without authorization from
community corrections and his whereabouts were unknown, and was in arrears on over
$1600 in fees. At a hearing in February 2012, Burton admitted that he violated his
probation by using methamphetamine, benzodiazepines, and marijuana. The court
imposed the original twenty-year aggregate sentence with no time suspended. It gave
Burton credit for all the time previously served in this cause at the Department of
Correction before the sentence modification, 306 credit days for time spent in
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confinement “as a result of this charge,”1 and 244 credit days for time served in the
residential program. Appellant’s App. p. 212. Burton now appeals.
DISCUSSION AND DECISION
Burton contends that the trial court abused its discretion by ordering him to serve
the balance of his suspended sentence following the revocation of his probation. 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).
This was Burton’s third admitted probation violation and the second violation in
which he admitted using methamphetamine. Despite being afforded leniency with his
previous violations, he failed to adjust his behavior.
Burton nonetheless argues that he has shown he can be successful if given
direction and structure, but the probation department failed to offer him temporary
options in residential and work release programs when he lost his job and apartment. His
probation officer, however, stated that Burton never told him he was going to lose his
apartment and never asked about alternative placements such as work release. When
asked about changing residences, Burton testified, “[O]nce that progressed I just kind of
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The court specified the dates of confinement, which include time periods before the State’s second
petition to revoke Burton’s probation.
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gave up, figured I would wait until they caught me and then I would deal with what I had
to deal with then.” Tr. p. 151.
Burton also argues that he took responsibility for his probation violations and that
his transition to living a clean life was bound to be rough. He further argues that, since
he was given credit for time served and returned to probation following his first probation
violation, the trial court should have “step[ped] up the consequences to match Mr.
Burton’s learning curve” instead of ordering him to serve the balance of his suspended
sentence. Appellant’s Br. p. 14. We cannot agree. Probation is a matter of grace and a
conditional liberty which is a favor, not a right. Cooper v. State, 917 N.E.2d 667, 671
(Ind. 2009). Burton was given an opportunity through probation to get assistance with
his transition. He squandered that opportunity by repeatedly violating his probation.
The trial court did not abuse its discretion by ordering him to serve the balance of
his suspended sentence.
CONCLUSION
We therefore affirm the trial court’s judgment.
FRIEDLANDER, J., and BROWN, J., concur.
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