Anthony H. Taylor v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2017, 8:25 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General
Elizabeth M. Littlejohn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony H. Taylor, July 31, 2017
Appellant-Defendant, Court of Appeals Case No.
20A04-1703-CR-540
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
20D04-1305-FD-486
20D04-1402-FD-200
20D04-1605-F6-519
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A04-1703-CR-540 | July 31, 2017 Page 1 of 6
Case Summary
[1] Anthony H. Taylor appeals the trial court’s revocation of his probation. He
contends that the trial court abused its discretion. Finding no abuse of
discretion, we affirm.
Facts and Procedural History
[2] On October 13, 2013, Taylor pled guilty to class D felony theft and to being a
habitual offender in cause number 20D04-1305-FD-486 (“Cause 486”). The
trial court imposed a suspended sentence of two years in a community
corrections work release program with a two-year suspended habitual offender
sentence enhancement. On March 5, 2013, Taylor began serving his
community corrections sentence in Cause 486 after completing a sentence in a
prior case. He was projected to finish his commitment in Cause 486 on March
4, 2016, and would then begin two years of probation.
[3] On August 13, 2015, Taylor pled guilty to class D felony failure to return to
lawful detention in cause number 20D04-1402-FD-200 (“Cause 200”). The trial
court sentenced him to 1095 days, with 365 days suspended to probation.
Taylor was to serve the executed portion of his sentence, 730 days, in
community corrections (home detention) before serving the suspended portion
of his sentence. On December 11, 2015, Michiana Community Corrections
filed a notice of violation of their home detention program based on Taylor
absconding from electronic monitoring. On January 8, 2016, a notice of
probation violation was also filed in Cause 200 on the same basis.
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[4] On May 4, 2016, Taylor stole $1489 worth of merchandise from a Kohl’s store
in Elkhart County. He was subsequently charged with level 6 felony theft and
with being a habitual offender in cause number 20D04-1605-F6-519 (“Cause
519”). Based upon Taylor’s commission of this new crime, Michiana
Community Corrections filed another notice of violation of their home
detention program in Cause 486, and a supplemental notice of probation
violation was also filed in Cause 200.
[5] Following a bench trial on December 12, 2016, Taylor was found guilty as
charged in Cause 519. On February 2, 2017, the trial court held a consolidated
sentencing hearing during which, in addition to the conviction in Cause 519,
the court considered the community corrections and probation violations in
Cause 486 and Cause 200. Taylor admitted that he violated the terms and
conditions of community corrections in both Cause 486 and Cause 200, but he
denied that his commission of a new crime violated his probation in Cause 200
because he was not yet serving the probationary phase of his sentence when he
committed the theft.
[6] At the conclusion of the hearing, the trial court revoked Taylor’s community
corrections placement in Cause 486, as well as both his community corrections
placement and his probation in Cause 200. The court found Taylor’s extensive
criminal history consisting of thirty-six convictions, and his repeated violations
of probation and community corrections as aggravating factors. The trial court
found as mitigating that Taylor participated in several beneficial programs
during his incarceration and that he accepted responsibility for most of his
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behavior. The trial court sentenced Taylor to two years’ imprisonment
enhanced by four years in Cause 519. The court ordered Taylor to serve two
years in Cause 486, consecutive to the sentence imposed in Cause 519, and with
a two-year enhancement to run concurrent with the enhancement in Cause 519.
Regarding Cause 200, the trial court ordered Taylor to serve a three-year
sentence consecutive to the sentence imposed in Cause 486.
[7] Taylor filed his notice of appeal on May 3, 2017. We subsequently granted his
motion to consolidate all three lower court causes in one appeal, and this
consolidated appeal ensued.
Discussion and Decision
[8] Although this is a consolidated appeal of three cases, Taylor appeals only the
trial court’s revocation of his probation in Cause 200. “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). It is within the trial
court’s discretion to determine the conditions of probation and to revoke
probation if those conditions are violated. Heaton v. State, 984 N.E.2d 614, 616
(Ind. 2013). We review a trial court’s decision to revoke probation for an abuse
of discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An
abuse of discretion occurs when the court’s decision is clearly against the logic
and effect of the facts and circumstances before the court. Id. We neither
reweigh evidence nor reassess witness credibility, and we consider only the
evidence favorable to the trial court’s judgment. Id.Court of Appeals of Indiana | Memorandum Decision 20A04-1703-CR-540 | July 31, 2017 Page 4 of 6
[9] Taylor’s sole assertion is that the trial court abused its discretion in revoking his
probation in Cause 200 because he was not yet serving the probationary phase
of his sentence but rather was still serving the executed portion of his sentence
in community corrections at the time of his violation. Indiana Code Section 35-
38-2-3(a) provides in relevant part that the trial court may revoke a person’s
probation if the person “has violated a condition of probation during the
probationary period.” It is well established that, regardless of when a defendant
enters or begins serving the official probationary phase of his sentence, a
defendant’s “probationary period” begins immediately after sentencing. Baker
v. State, 894 N.E.2d 594, 597-98 (Ind. Ct. App. 2008) (citing Rosa v. State, 832
N.E.2d 1119, 1121 (Ind. Ct. App. 2005); Crump v. State, 740 N.E.2d 564, 568
(Ind. Ct. App. 2000), trans. denied (2001); Ashley v. State, 717 N.E.2d 927, 928
(Ind. Ct. App. 1999); Gardner v. State, 678 N.E.2d 398, 401 (Ind. Ct. App.
1997); Childers v. State, 656 N.E.2d 514, 518 (Ind. Ct App. 1995), trans. denied
(1996); Johnson v. State, 606 N.E.2d 881, 882 (Ind. Ct. App. 1993); Ashba v.
State, 570 N.E.2d 937, 939 (Ind. Ct. App. 1991), aff’d 580 N.E.2d 244 (Ind.
1991), cert. denied, 503 U.S.1007 (1992)).
[10] Here, Taylor’s probationary period in Cause 200 began when he was sentenced
on August 13, 2015. That same day, he was informed in open court of the
terms and conditions of his probation, and the trial court instructed the sheriff’s
deputy to provide him with a copy of the probation terms before he left the
courtroom. Tr. Vol. 2 at 87-88. Term number three of Taylor’s probation
specified that he was not to violate “any law.” Id. On May 6, 2016, while he
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was serving the executed portion of his sentence in community corrections,
Taylor was charged with committing level 6 felony theft, and he was later
convicted of that crime following a bench trial. This was a violation of the
terms and conditions of his probation, and the trial court was well within its
discretion in revoking Taylor’s probation in Cause 200 on that basis. Contrary
to Taylor’s assertion, it is of no moment that he had not yet entered the
probationary phase of that sentence at the time he committed a new crime. The
trial court’s revocation of Taylor’s probation is affirmed.
[11] Affirmed.
Baker, J., and Barnes, J., concur.
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