James Shead, Jr. v. State of Indiana (mem. dec.)

J
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be
                                                                                   Jan 13 2021, 8:34 am
regarded as precedent or cited before any
court except for the purpose of establishing                                           CLERK
                                                                                   Indiana Supreme Court
the defense of res judicata, collateral                                               Court of Appeals
                                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Theodore E. Rokita
South Bend, Indiana                                      Attorney General of Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Shead, Jr.,                                        January 13, 2021
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-658
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
State of Indiana,                                        The Honorable John M. Marnocha,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Elizabeth A. Hardtke,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D02-1710-F3-67



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021         Page 1 of 6
                                          Case Summary
[1]   James Shead, Jr. (“Shead”) appeals, arguing that the trial court abused its

      discretion by revoking his probation and ordering him to serve the balance of

      his suspended sentence in the Indiana Department of Correction (“DOC”).

[2]   We affirm.



                            Facts and Procedural History
[3]   In March 2018, Shead was sentenced to ten years in the DOC for Level 3 felony

      Aiding, Inducing, or Causing Armed Robbery. The ten-year sentence was fully

      suspended and Shead was placed on probation for a period of five years.


[4]   Shead signed a document acknowledging the terms of his probation. That

      document stated that “[v]iolation of any law may be considered a violation of

      probation” and it specified that Shead “may not purchase, use, possess, or exert

      control over a firearm or other dangerous device.” App. Vol. 2 at 42.

[5]   In April 2018, the State filed a petition seeking the revocation of Shead’s

      probation and the imposition of Shead’s suspended sentence. The State alleged

      that Shead had failed to submit to urine screens. The State later filed an

      addendum to its petition to revoke, alleging that Shead had committed three

      criminal offenses for which Shead was charged in a separate cause.


[6]   During the pendency of the petition to revoke, a trial was held in the separate

      cause. In that cause, Shead was ultimately convicted of a single criminal

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 2 of 6
      offense: Level 4 felony Unlawful Possession of a Firearm by a Serious Violent

      Felon. Thereafter, the court held a combined hearing regarding revocation in

      the instant cause and sentencing in the other cause. At the hearing, the court

      noted that the State initially sought revocation “due to some positive urine drug

      screens” but later alleged that Shead had committed additional criminal

      offenses. Tr. Vol. 3 at 5. The court stated that it was inclined to take judicial

      notice of Shead’s conviction in the other cause and find that Shead violated the

      conditions of his probation. The State agreed with the proposed approach and

      there was no formal presentation of evidence regarding the State’s allegations.

[7]   The court ultimately found that Shead “violated a term of probation because

      [he] committed the new offense in the Level 4 felony.”

Id. at

6. 
The court later

      stated that it was “revoking [Shead’s] status on probation based on the new

      conviction[.]”
 

Id. at

28. 
As a consequence for the violation, the court ordered

      Shead to serve the balance of his previously suspended ten-year sentence.


[8]   Shead now appeals.



                                 Discussion and Decision
[9]   Placement on probation “is a matter of grace and a conditional liberty that is a

      favor, not a right[.]” State v. I.T., 
4 N.E.3d 1139
, 1146 (Ind. 2014) (quoting Cox

      v. State, 
706 N.E.2d 547
, 549 (Ind. 1999)). Moreover, “[o]nce 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 v. State,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 3 of 6
       
878 N.E.2d 184
, 188 (Ind. 2007). We review the trial court’s probation-related

       decisions for an abuse of discretion, which occurs when the court’s decision is

       clearly against the logic and effect of the facts and circumstances or when the

       court has misapplied the law. Heaton v. State, 
984 N.E.2d 614
, 616 (Ind. 2013).


[10]   If a person violates a condition of probation—even a single condition—the trial

       court “may revoke . . . probation.” Ind. Code § 35-38-2-3(a). Nevertheless, the

       court is not obligated to revoke the person’s probation. See I.C. § 35-38-2-3(h).

       Rather, upon a violation of probation, the court may (1) “[c]ontinue the person

       on probation, with or without modifying or enlarging the conditions”; (2)

       “[e]xtend the person’s probationary period for not more than one (1) year

       beyond the original probationary period”; and/or “[o]rder execution of all or

       part of the sentence that was suspended at the time of initial sentencing.”
 Id.


[11] 
  “Probation revocation is a two-step process.” 
Heaton, 984 N.E.2d at 616
. First,

       the court must determine whether the person violated a condition of probation.


       Id. Second, if the 
court identifies a violation, it must determine the appropriate

       consequence.
 Id. In imposing a 
consequence, the court does not abuse its

       discretion so long as it complies with Indiana Code Section 35-38-2-3 and

       selects among the enumerated consequences. See Wann v. State, 
997 N.E.2d

       1103
, 1106 (Ind. Ct. App. 2013) (“Generally speaking, as long as the trial court

       follows the procedures outlined in Indiana Code Section 35-38-2-3, the trial

       court may properly order execution of a suspended sentence.”).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 4 of 6
[12]   Here, Shead does not dispute that he violated a condition of his probation by

       committing the criminal offense of Unlawful Possession of a Firearm by a

       Serious Violent Felon. Rather, he argues that the court “abused its discretion in

       imposing the entire previously suspended sentence . . . for a single violation of

       probation[.]” Br. of Appellant at 4. According to Shead, because he “had no

       other probation violations” and “was reporting to his probation officer as

       instructed and was gainfully employed,” the court abused its discretion by

       imposing the balance of Shead’s previously suspended sentence.
 

Id. at

7.

[13] 
Id. at 
7. 
Id. at 
28. 
Although the court referred to other

       allegations in the petition, its decision to revoke Shead’s probation was clearly

       based on the firearm-related offense. Furthermore, even if a court considers

       improper grounds for revocation, generally, where a violation is “alleged and

       proved, revocation may be sustained on that ground alone[.]” Jaynes v. State,

       
437 N.E.2d 137
, 140 n.3 (Ind. Ct. App. 1982). Having reviewed the court’s

       remarks at the hearing, we discern no reason to depart from this general rule.

[16]   The trial court did not abuse its discretion in revoking Shead’s probation and

       ordering him to serve the balance of his previously suspended sentence.

[17]   Affirmed.

       Robb, J., and Tavitas, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 6 of 6
Shead points out that the court’s written order

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-658 | January 13, 2021   Page 5 of 6
       “does not specify any reason” for revoking the balance of Shead’s suspended

       sentence.
 Id. Furthermore, although Shead 
acknowledges that a court “is not

       required to make a detailed sentencing statement when reinstating a portion of

       an already imposed sentence,” he argues that “common sense would seem to

       dictate that if a defendant has a right to appeal such a decision that the record

       contain a clear sense as to why a trial court made such a decision to assist the

       appellate court in determining if there was an abuse of discretion.”
 Id. at 
n.1.


[15]   We disagree that the record is unclear as to the grounds for revoking probation.

       At the hearing, the court plainly found that Shead “violated a term of probation

       because [he] committed the new offense in the Level 4 felony.” Tr. Vol. 3 at 6.

       The trial court later stated that it was “revoking [Shead’s] status on probation

       based on the new conviction[.]”
 
  Because Shead violated a condition of his probation by committing a criminal

       offense, Indiana Code Section 35-38-2-3(h) authorized the trial court to “[o]rder

       execution of all or part of the sentence that was suspended at the time of initial

       sentencing.” The court was authorized to do so without regard for any alleged

       aggravating or mitigating circumstances. See Porter v. State, 
117 N.E.3d 673
,

       675 (Ind. Ct. App. 2018) (noting that the applicable statute “imposes no

       requirement upon the trial court to balance aggravating and mitigating

       circumstances” when imposing a consequence for a probation violation).


[14]   Shead also argues that the court “improperly considered probation violation

       allegations that were not a part of the evidence submitted during the evidentiary

       portion of the proceedings.” Br. of Appellant at 6. Moreover, Shead contends

       that the court’s oral statement “detailing the reasons for imposing execution of

       the entire . . . suspended sentence is unclear” and it is “very difficult to discern

       what evidence was considered by the court” in selecting a consequence for the

       probation violation.
 

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