Eric G. Couthen v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 17 2013, 5:32 am
regarded as precedent or cited 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:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHELLE BUMGARNER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ERIC G. COUTHEN, )
)
Appellant-Defendant, )
)
vs. ) No. 84A04-1302-CR-65
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-0801-FA-106
September 17, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Eric Couthen appeals the sentence imposed by the trial court following the
revocation of his probation. We affirm.
In January 2008, the State charged Couthen in Vigo Superior Court with Class A
felony possession of a destructive device or explosive, Class C felony intimidation, and
two counts of Class A misdemeanor invasion of privacy. Couthen pleaded guilty to the
intimidation charge pursuant to a plea agreement in which the State agreed to dismiss the
remaining charges. The agreement also provided that the State would recommend an
eight-year sentence, with six years executed and two years suspended to probation. The
trial court accepted the plea, entered judgment of conviction, and sentenced Couthen to
eight years, with six years executed and two years suspended to probation.
Couthen began his probation in May 2011. In September 2011, the State filed a
notice of probation violation, alleging he had been charged with new crimes while on
probation. Couthen appeared for a hearing in October 2011. The court informed him of
the allegations, appointed counsel, and set the next hearing for January 2012. Couthen
failed to appear for the January 2012 hearing, and a bench warrant was issued.
Couthen was arrested in April 2012 and appeared for a hearing. There, the parties
agreed the State would amend the allegations to include failure to report to the probation
department; Couthen would admit he failed to report, be released from custody, and be
ordered to report to his probation officer after resolution of a matter pending in Johnson
County; and the parties would then proceed to disposition for the probation violation.
Couthen was aware that the State’s recommendation would “obviously depend[ ] upon
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how he does and reports.” Tr. p. 26. The court granted the motion to amend, Couthen
admitted he failed to report, and a dispositional hearing was set for June 4, 2012.
On that date, Couthen failed to appear, and his probation officer noted that
Couthen was scheduled to appear in court in Johnson County on the same day. The Vigo
Superior Court continued the matter to June 18, 2012. On June 18, Couthen failed to
appear yet again, and the court was informed that he had failed to appear for his June 4
Johnson County hearing and that a warrant had thus been issued. The Vigo Superior
Court issued a bench warrant.
In December 2012, Couthen was arrested and appeared for a hearing. The State
recommended a one-year executed sentence, and Couthen asked for time served. The
trial court ordered an updated presentence investigation report and continued the matter
to January 2013.
At the January 2013 hearing, the State noted that the presentence investigation
report reflected a “fairly significant adult criminal history.” Id. at 71. Further noting
Couthen’s “failure to bring himself into compliance, despite being given numerous
chances over a significant period of time,” id. at 72, the State asked the court to order him
to serve the entire two years that were previously suspended. Couthen again asked for
time served. The court revoked Couthen’s probation and ordered the entire previously-
suspended sentence to be executed.
The sole issue presented in this appeal is whether the trial court abused its
discretion by ordering Couthen to serve his entire previously-suspended sentence.
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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).
The trial court’s statement while imposing Couthen’s sanction reflects his poor
behavior while on probation. There, the court noted his multiple failures to appear in this
case, his convictions in Terre Haute City Court for possession of marijuana and driving
while suspended, his then-pending charge in Johnson County for purchasing more than
3.6 grams of ephedrine or pseudoephedrine, and the several warrants issued for his arrest
from all three courts. We also note Couthen has admitted violating his probation at least
four times in the past.
Couthen nonetheless argues his 2008 plea agreement provides the basis for a lesser
sanction. Specifically, he claims the State essentially modified that contract by
recommending only a one-year executed sentence at his December 2012 hearing, and
thus, his argument continues, the trial court abused its discretion by imposing more than
one year.1
There are several defects in this argument, only one of which is necessary to note
here. The State’s recommendation on Couthen’s probation violation sanction has nothing
1
Couthen says nothing about the State increasing its recommendation to two years upon reviewing his
presentence investigation report at the January 2013 hearing.
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to do with his plea agreement. It was just that—a recommendation—and in no way
binding on the trial court.
We therefore conclude that the trial court did not abuse its discretion by imposing
Couthen’s entire previously-suspended sentence upon the revocation of his probation.2
Affirmed.3
RILEY, J., and BRADFORD, J., concur.
2
Couthen also invokes Indiana Appellate Rule 7(B) and argues that the trial court’s imposition of his
previously-suspended sentence was inappropriate. 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”).
3
Couthen further cites the federal and state constitutional provisions prohibiting cruel and unusual
punishment but provides no corresponding analysis or argument. The issue is therefore waived.
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