Anthony Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 10, 2015
• Docket: 03A05-1412-CR-592
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 10 2015, 9:42 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Gregory F. Zoeller Laura Raiman Attorney General of Indiana ALCORN SAGE SCHWARTZ & Katherine Modesitt Cooper MAGRATH, LLP Deputy Attorney General Madison, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Davis, November 10, 2015 Appellant-Defendant, Court of Appeals Case No. 03A05-1412-CR-592 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff Heimann, Judge Trial Court Cause No. 03C01-0309-FB-1356

Mathias, Judge.

[1] Anthony Davis (“Davis”) pleaded guilty in the Bartholomew Circuit Court to

Class B felony possession of methamphetamine. The trial court ordered Davis

Court of Appeals of Indiana | Memorandum Decision 03A05-1412-CR-592 | November 10, 2015 Page 1 of 5 to serve fifteen years in the Department of Correction with three years

suspended. After being released from prison, Davis was arrested on new

charges and also failed to report to probation. The trial court issued a bench

warrant for his arrest and held a revocation hearing where Davis admitted to

violating the terms of his probation. The trial court ordered Davis to serve the

remainder of his suspended three-year sentence in the Department of

Correction. On appeal, Davis argues that the trial court abused its discretion

when it considered information contained in Davis’s medical records in making

its sentencing decision.

[2] We affirm.

Facts and Procedural History

[3] On October 7, 2005, Davis pleaded guilty to Class B felony possession of

methamphetamine. The trial court ordered him to serve a fifteen-year executed

sentence with three years suspended to probation. He was released to probation

on November 4, 2010. The terms of Davis’s probation included, among other

conditions, reporting to his probation officer and not committing any other

offenses.

[4] While on probation, Davis was arrested for public intoxication after a suicide

attempt on February 29, 2012. After this incident, Davis received mental health

and substance abuse counseling through Meridian Services until February 2013.

He also stopped reporting for probation at this time because his probation

officer allegedly told him that revocation of his probation was certain. After he

Court of Appeals of Indiana | Memorandum Decision 03A05-1412-CR-592 | November 10, 2015 Page 2 of 5 failed to report on April 25, 2012, Davis’s probation officer sent a couple of

letters to the address Davis provided, but both were returned as undeliverable.

[5] The State then filed a petition to revoke Davis’s probation on August 10, 2012.

Several days later, the trial court issued a bench warrant for Davis’s arrest.

Davis was finally discovered and arrested more than two years later, on

September 25, 2014.

[6] The trial court held a probation revocation hearing on December 8, 2014, at

which Davis admitted to violating the terms of probation. At the hearing, Davis

requested that the trial court take judicial notice of his medical records detailing

his mental health and substance abuse counseling. He explained that he had

some medical issues that were “quite severe” and would obtain better treatment

if the trial courted permitted him to remain on probation. Tr. p. 35.

[7] The trial court considered that Davis continued to abuse alcohol and obtained

opiates from the street, facts which were noted in his records from treatment at

Meridian Services. Davis disputed the veracity of these reports. The trial court

then ordered Davis’s probation revoked and reinstated the balance of his three-

year suspended sentence to be served in the Indiana Department of Correction.

Davis now appeals.

Discussion and Decision

[8] Davis does not contest the trial court’s finding that he violated his probation by

his arrest for public intoxication and his failure to report to probation. Rather,

Court of Appeals of Indiana | Memorandum Decision 03A05-1412-CR-592 | November 10, 2015 Page 3 of 5 he argues that the trial court abused its discretion when it ordered him to serve

the remainder of his previously suspended three-year sentence. We review a

trial court’s sentencing decision for a probation violation as an abuse of

discretion. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012) (citing

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.

[9] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

(Ind. Ct. App. 2006). First, the court must make a factual determination that a

violation of probation has occurred. Id. When a probationer admits to the

violation, the court can proceed to the second step of the inquiry and determine

whether the violation warrants revocation. Id. In making a determination of

whether the violation warrants revocation, the probationer must be given an

opportunity to present evidence that explains and mitigates his violation. Id.

[10] Upon revocation of probation, a trial court may impose one or more of the

following sanctions: (1) continue the person on probation, with or without

modifying or enlarging the conditions; (2) extend the person’s probationary

period for not more than one (1) year beyond the original probationary period;

or (3) order execution of all or part of the sentence that was suspended at the

time of initial sentencing. Alford, 965 N.E.2d at 135; Ind. Code § 35-38-2-3(h)

(1)-(3).

Court of Appeals of Indiana | Memorandum Decision 03A05-1412-CR-592 | November 10, 2015 Page 4 of 5 [11] Here, Davis asserts that the trial court did not focus on his public intoxication

conviction or failure to meet with his parole officer in determining his sentence,

but instead highlighted instances of alcohol abuse and “getting opiates from the

street.” Tr. p. 37. He argues that it was improper to consider these factors in

making its sentencing decision.

[12] However, at the revocation hearing, Davis specifically asked the trial court to

take judicial notice of his previously submitted medical records from the

hospital and Meridian Services. He provided the records to the court to show

that he had medical conditions requiring treatment that should mitigate his

sentence. Accordingly, Davis invited any claimed error by presenting the

records for the trial court to review. He cannot now argue that trial court

abused its discretion by considering his medical records. “A party may not take

advantage of an error that he commits, invites, or which is the natural

consequence of [his] own neglect or misconduct.” Arthur v. State, 950 N.E.2d

343, 347 (Ind. Ct. App. 2011). See also Gamble v. State, 831 N.E.2d 178, 184

(Ind. Ct. App. 2005) (Invited errors are not subject to review by this court).

[13] For all of these reasons, the trial court did not abuse its discretion in considering

the information in Davis’s medical records when it ordered him to serve the

remainder of his previously suspended three-year sentence.

[14] Affirmed.

Baker, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 03A05-1412-CR-592 | November 10, 2015 Page 5 of 5