Warren E. Large v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Oct 01 2013, 5:28 am
before any 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:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Assistant to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WARREN E. LARGE, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1303-CR-133
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-1008-FC-2873
October 1, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Warren Large pleaded guilty in 2011 to one count of Class C felony child
molesting and was sentenced to four years, three executed and one suspended to
probation. In 2013, he was found to have violated his probation and was ordered to serve
the entirety of his previously-suspended sentence. Large now appeals, raising the sole
issue of whether the trial court abused its discretion in sentencing Large for the probation
violation. Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
Large was accused in 2010 of child molesting with respect to a six-year-old child
related to his wife. He pleaded guilty to child molesting as a Class C felony, and
pursuant to the terms of the plea, was sentenced to the Department of Correction for four
years, with three years to be executed and one year to be suspended to formal probation,
the conditions of which included that he report to the probation office on or before the
first day of each month and have no contact with children under the age of sixteen.
Large was released to probation in early 2012. On January 29, 2013, a notice of
probation violation was filed alleging that Large had failed to report to the probation
office as ordered in December and had contact with a child under sixteen years of age.
Large was arrested on January 31, 2013, and held in jail until the fact-finding hearing on
February 28, 2013. Prior to the start of the hearing, counsel conferred with the trial court,
after which the trial court stated:
My understanding is that instead of having a probation violation hearing
today Mr. Large, you’re gonna admit that you violated the terms of your
probation; . . . you’re gonna be sentenced to time served on this [probation
violation]; your probation will be enlarged for one (1) year, extended for
one (1) year; . . . [t]hat you’re gonna abide by all of the additional terms of
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probation that are contained in the Indiana Recommended Special
Probation Conditions for Adult Sex Offenders . . . .
Transcript at 4-5. Large concurred that was the agreement that had been reached. The
trial court then asked Large the following questions:
Court: . . . So Mr. Large, do you admit or deny that you violated the
terms of your probation?
Large: I admit, I did.
Court: And specifically the allegation was that you had failed to
report, and that you had unsupervised contact with someone
under sixteen (16).
Large: No.
Court: You did not?
Large: I did not your Honor, under sixteen (16). I violated my
probation, only had one (1) month to go, but I have not seen
anyone under sixteen (16) . . . .
Id. at 5-6. The trial court then instructed the State to call its first witness.
Anthony Heber, Large’s probation officer, testified that Large failed to report in
December 2012 and January 2013, and that he had not contacted the probation office
between the date of his last missed appointment and his arrest. Edith Wentz, manager at
a motel where Large had been staying prior to his arrest, testified that she witnessed an
incident in the motel’s reception area where Large spoke to the son of the motel’s
maintenance man, whom she knew to be only fifteen years old. Large asked the boy if he
still lived down the road, and Wentz told Large not to talk to the boy and to leave the
area. At the conclusion of the testimony, the trial court stated:
. . . I’m gonna find that Mr. Large violated the terms of his probation. I
think it’s, may be a closer call on the, whether or not it’s an unsupervised
contact with an under sixteen (16) year old, but he clearly violated by not
contacting and communicating with his probation officer for two (2)
consecutive months. I’m finding that he’s violated the terms of his
probation. I’ll just find it on that issue solely, to make the record clear.
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Id. at 14. The State recommended revocation of Large’s probation and execution of the
entirety of his previously-suspended sentence. Large’s counsel requested that he be
returned to probation: “He only missed two (2) [appointments]. Had we not had the
accusations of contact with a child under the age of sixteen (16), I don’t think we would
have been here, and Mr. Large would be restored to probation after time served in jail.”
Id. at 15. The trial court ordered Large to serve the balance of his one-year suspended
sentence, with credit for time served since his arrest on the probation violation. Large
now appeals this sentence.
Discussion and Decision
I. Standard of Review
“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). Once
a trial court has exercised its grace by ordering probation, it has considerable leeway in
deciding how to proceed. Id. “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.” Id. We therefore review a trial court’s sentencing
decision in a probation revocation proceeding for an abuse of discretion. Alford v. State,
965 N.E.2d 133, 134 (Ind. Ct. App. 2012), trans. denied. “An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and circumstances.”
Id. If a defendant is found to have violated his or her probation, a trial court may (1)
continue the defendant on probation; (2) extend the probationary period for not more than
one year beyond the original period; and/or (3) order all or part of a previously suspended
sentence to be executed. Ind. Code § 35-38-2-3(h).
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II. Sanction for Probation Violation
Large does not challenge the trial court’s decision to revoke his probation; he
challenges only the sentence the trial court imposed. His argument is essentially that he
received a more severe sentence for putting the State to its proof. When all parties
thought Large was going to admit to the two alleged violations, the recommended
sanction was an extended probationary period; when Large would not admit he had
violated the no-contact condition of his probation and there was instead an evidentiary
hearing, at the conclusion of which the trial court found specifically a violation only for
failure to report, he received a stiffer sanction. Large argues this was an abuse of the trial
court’s discretion.
The trial court specifically found that Large had violated only the reporting
condition of his probation,1 but the evidence also supports a finding that Large had
contact with a person under the age of sixteen. The trial court alluded to that, but called it
a “closer call” as to whether it was an “unsupervised contact.” Tr. at 14. The
probationary condition at issue, however, was that Large would have “NO CONTACT
with children under the age of 16 years,” unsupervised or otherwise. Appellant’s
Appendix at 33. Large offered no explanation for his failure to report to his probation
officer. In fact, he stated that he knew he only had one month to go and he was “not quite
sure why [he] didn’t report to probation.” Tr. at 16. Large was not “penalized for
refusing to tell what he believed was a lie under oath.” Brief of the Appellant at 5. The
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Large and the State disagree about whether Large admitted to violating this condition of his probation.
He generally admitted to violating the terms of his probation, but then backtracked only on the no-contact provision
when the trial court specified the allegations to which he was admitting. We still consider his original statement an
admission that he violated the reporting condition. Regardless, the State presented evidence supporting both
allegations.
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trial court heard the State’s evidence and Large’s explanation or lack thereof for his
actions, and determined that serving his previously-suspended sentence was the
appropriate sanction for his conduct. We decline to find the trial court’s decision to
require Large to serve his one-year suspended sentence to be an abuse of discretion.
Conclusion
The trial court did not abuse its discretion by ordering that Large serve his
previously-suspended sentence for violating the terms of his probation. The judgment of
the trial court is affirmed.
Affirmed.
RILEY, J., and KIRSCH, J., concur.
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