Anthony Taylor v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 21, 2014
• Docket: 73A01-1307-CR-292
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Mar 21 2014, 11:30 am

establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ANDREW M. EADS GREGORY F. ZOELLER Lux & Lux, P.A. Attorney General of Indiana Shelbyville, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ANTHONY TAYLOR, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1307-CR-292 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable Norman Curry, Sr. Judge Cause No. 73D02-1107-FD-144

March 21, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Anthony Taylor appeals the order that he be incarcerated for the remainder of his

suspended sentence following the revocation of his probation. He argues the trial court

abused its discretion when it ordered him to serve his entire suspended sentence. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 13, 2011, the State charged Taylor with Class D felony operating a vehicle

while intoxicated with a prior conviction;1 Class A misdemeanor operating a vehicle while

intoxicated;2 and Class C misdemeanor operating a vehicle with alcohol concentration

equivalent to at least .08 but less than 0.15.3 On November 10, 2011, Taylor pled guilty to

Class D felony operating a vehicle while intoxicated with a prior conviction. The trial court

entered a judgment of conviction and sentenced Taylor to 545 days incarceration with 535

days suspended to probation. As conditions of his probation, Taylor was ordered to attend

and complete the MADD Victim Impact Panel and pay associated costs, complete sixty hours

of community service, and participate in the court’s alcohol and drug program (“ADA

Progam”) and pay all associated fees.

On January 9, 2013, the State filed a petition to revoke probation after Taylor was

unsuccessfully discharged from the ADA program, failed to complete community service

hours, and did not pay required fees. On May 7, 2013, the State filed an addendum to the

petition to revoke probation alleging Taylor had been charged with operating a vehicle while

1 Ind. Code § 39-30-5-3. 2 Ind. Code § 9-30-5-2. 3 Ind. Code § 9-30-5-1.

2 intoxicated in Marion County on January 15, 2013.

After Taylor admitted that he violated his probation by being unsuccessfully

discharged from the ADA program, failing to complete his community service hours, failing

to pay imposed fees, and being charged with a new offense of operating a vehicle while

intoxicated, the trial court found Taylor had violated his probation. It inquired about his

criminal history and failure to fulfill the conditions of his probation, and then ordered Taylor

to serve his entire suspended sentence.

DISCUSSION AND DECISION

A revocation of probation is reviewed on appeal only for an abuse of discretion.

Podlusky v. State, 839 N.E.2d 198, 200 (Ind. Ct. App. 2005). An abuse of discretion occurs

where the decision is clearly against the logic and effect of fact and circumstances. Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007). On review, we consider only the evidence most

favorable to the revocation and do not reweigh that evidence or judge the credibility of

witnesses. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008).

Taylor first argues the trial court abused its discretion because it did not set the matter

for a dispositional hearing in order to conduct a pre-sentence investigation and to allow him

to offer mitigating circumstances. However, when a probationer admits violations, no

evidentiary hearing is necessary. Terrell, 886 N.E.2d at 101. Nor is the trial court obligated

to hold a separate dispositional hearing or have the State conduct a pre-sentence

investigation. See Boyd v. State, 481 N.E.2d 1124, 1127 (Ind. Ct. App. 1985) (holding those

procedural steps not required when determining whether to order execution of all or part of

3 suspended sentence). As the law does not require the trial court to hold a hearing or obtain a

pre-sentence investigation, we cannot find an abuse of discretion in the trial court’s failure to

take those steps.4

Taylor also argues the trial court should have explained why it was imposing the entire

suspended sentence. The trial court noted that Taylor “admits violating probation by being

unsuccessfully discharged from the ADA Program, failing to complete community service

hours and by failing to pay associated fees. The Defendant also admits that he has been

charged with OVWI in Marion County, IN.” (App. at 14.) As Taylor did not satisfy

numerous conditions of probation and was arrested for the same crime for which he was on

probation, imposition of his entire suspended sentence was not error. See Ind. Code § 35-38-

2-3(h) (the trial court has discretion to impose the entirety of a suspended sentence when

probation is revoked). There was no abuse of discretion in the order that Taylor serve the

remainder of his suspended sentence.

CONCLUSION

Taylor has not demonstrated the trial court abused its discretion by ordering Taylor to

be incarcerated for the remainder of his suspended sentence upon revocation of his probation.

Accordingly, we affirm.

Affirmed.

VAIDIK, C.J., and RILEY, J., concur.

4 To the extent Taylor asserts a dispositional hearing would have permitted him to offer evidence of mitigators, we note the record demonstrates counsel questioned him at the hearing at which he admitted the probation violation, and he has not explained why he could not also have testified about mitigators then. 4