Michael D. McGee v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
May 29 2012, 8:40 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL P. QUIRK GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL D. McGEE, )
)
Appellant-Defendant, )
)
vs. ) No. 18A04-1110-CR-566
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
Cause No. 18C01-1004-FC-15
May 29, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Michael D. McGee appeals the trial court’s order revoking his home detention and
ordering him to serve his entire four-year sentence in the Department of Correction
(DOC). Specifically, McGee argues that the trial court erred in ordering him to serve the
entirety of his sentence. Finding no error, we affirm the judgment of the trial court.
FACTS
In November 2010, McGee pleaded guilty to one count of class C felony non-
support of a child. Pursuant to the terms of a plea agreement, in January 2011, the trial
court sentenced McGee to four years of incarceration with two years suspended to
supervised probation. The trial court authorized McGee to serve the executed portion of
his sentence on home detention with electronic monitoring by Delaware County
Community Corrections.
In March 2011, less than three months after McGee began serving home detention,
the State filed a motion to revoke it. Specifically, the motion alleged that McGee
committed theft and escape when he failed to return to his home and took the electronic
serial monitoring transmitter owned by Community Corrections. The motion also alleged
that McGee tested positive for cocaine and left his home without permission for forty-
eight hours. Lastly, the motion alleged that McGee owed $1220 in fees.
At a September 2011 hearing on the motion, McGee admitted the allegations, and
at a dispositional hearing the following month, the trial court revoked his two-year home
detention and ordered him to serve all four years of the previously-imposed sentence.
McGee appeals the imposition of the entire four-year sentence.
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DISCUSSION AND DECISION
McGee’s sole argument is that the trial court abused its discretion in ordering him
to serve the entirety of his previously-imposed sentence after it revoked his home
detention. McGee specifically argues that imposition of the entire four-year sentence is
inappropriate pursuant to Indiana Appellate Rule 7(B). However, this is not the correct
standard to apply when reviewing a sentence imposed for a home detention violation.
See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (holding that Rule 7(B) is not the
correct standard when reviewing a sentence imposed for a probation violation).
Placement in an in-home detention program is a matter of grace and conditional
liberty that is a favor, not a right. Rodriguez v. State, 714 N.E.2d 667, 670 (Ind. Ct.
App.1999). It is an alternative to commitment to the DOC and made at the sole
discretion of the trial court. Id. This Court has previously analogized home detention to
probation, emphasizing that both are governed by the trial court’s discretionary powers.
See Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998). Based on that similarity,
we held in Brooks that the standard of review for a petition for a termination of home
detention privileges is analogous to that of a probation revocation. Id. Similarly, in
Rodriguez, we held that in reviewing the validity of home detention conditions, we would
employ the same standard of review as that used in reviewing the validity of probation
conditions. 714 N.E.2d at 670. Accordingly, in reviewing a sentence imposed following
the revocation of home detention, we employ the same standard of review as that used in
reviewing the validity of a sentence imposed following the revocation of probation.
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Our Supreme Court has explained that 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. Prewitt, 878 N.E.2d at 188. 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. Accordingly,
we review a trial court’s sentencing decisions for probation violations for an abuse of
discretion. Id. An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances. Id.
Upon finding that a probationer has violated a condition of probation, the trial
court may continue probation, with or without modifying or enlarging the conditions,
extend probation for not more than one year beyond the original probationary period, or
order execution of the initial sentence that was suspended. Ind. Code § 35-38-2-3(g).
Further, if the procedures for revoking probation have been properly followed, we will
uphold the trial court’s imposition of the entire previously-suspended sentence. Goonen
v. State, 705 N.E.2d 209, 212-13 (Ind. Ct. App. 1999).
Here, McGee admitted that while he was on home detention, he committed the
offenses of theft and escape. He also tested positive for cocaine, left his home without
permission for forty-eight hours, and owed over $1,000 in fees. These admitted
violations justified the imposition of the entirety of McGee’s four-year sentence. See
Sanders v. State, 825 N.E.2d 952, 958 (Ind. Ct. App. 2005) ( affirming the imposition of
a five-year previously-suspended sentence based upon the defendant’s commission of
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three new offenses and a positive test for cocaine). Consequently, we affirm the decision
of the trial court.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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