Antwain Starks v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 26, 2017
• Docket: 69A01-1608-CR-1926
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 26 2017, 7:03 am

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 Leanna Weissman Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana

Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antwain Starks, January 26, 2017 Appellant-Defendant, Court of Appeals Case No. 69A01-1608-CR-1926 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff. Judge Trial Court Cause No. 69D01-1507-F6-89

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 1 of 5 [1] Antwain Starks appeals the trial court’s order he serve the remainder of his

suspended sentence following the revocation of his probation. We affirm.

Facts and Procedural History [2] On August 25, 2015, in Ripley County, Starks pled guilty to Level 6 felony

operating a vehicle while a habitual traffic violator 1 and Class A misdemeanor

making a false identity statement. 2 The trial court sentenced Starks to 910 days,

with 810 days suspended to probation. Starks received 100 days credit for time

served prior to sentencing. As a condition of his probation, Starks was

prohibited from committing any crimes.

[3] On May 23, 2016, the State filed a notice of probation violation alleging Starks

committed Level 5 felony escape, 3 Level 6 felony strangulation, 4 Level 6 felony

criminal confinement, 5 Level 6 felony domestic battery, 6 Level 6 felony battery

resulting in bodily injury, 7 and Level 6 felony resisting law enforcement 8 in

Marion County (“Marion County Offenses”). Prior to the probation revocation

1 Ind. Code § 9-30-10-16 (2015). 2 Ind. Code § 35-44.1-2-4 (2012). 3 Ind. Code § 35-44.1-3-4(a) (2014). 4 Ind. Code § 35-42-2-9(b) (2014). 5 Ind. Code § 35-42-3-3(a) (2014). 6 Ind. Code § 35-42-2-1.3(b) (2014). 7 Ind. Code § 35-42-2-1(d)(1) (2014). 8 Ind. Code § 35-44.1-3-1(b)(1) (2014).

Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 2 of 5 hearing, Starks was convicted of Level 5 felony escape and Level 6 felony

strangulation in the Marion County Offenses. At the time he committed the

Marion County Offenses, Starks was also on home detention for Level 5

burglary 9 in Hendricks County.

[4] At his probation revocation hearing on July 27, 2016, Starks admitted violating

his probation by committing the Marion County Offenses. Starks asked the

trial court for leniency based on the fact his mother was ill and he has four

children. He presented a letter from his employer indicating he was a “family

man.” (Tr. at 20.) Regarding those mitigators, the trial court stated, “The

Court has been presented with a letter indicating that [Starks] is a family man

and has four children, however that mitigator is diminished based on the fact

that the victim of the Strangulation was the mother of his four children.” (Id. at

29.) The court also noted Starks admitted he violated his probation, “however

the Court does believe that mitigator is diminished based on the fact that he has

already pled guilty in the Marion County Superior Court Criminal Division 5,

to the Escape and Strangulation, so a probation violation was a foregone

conclusion.” (Id.) The trial court found Starks’ criminal history to be “a

significant aggravating factor.” (Id. at 28.) The trial court revoked Starks’

9 Ind. Code § 35-43-2-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 3 of 5 probation, ordered him to serve 730 days 10 incarcerated, and gave him good

time credit for 57 days.

Discussion and Decision [5] Starks alleges the court abused its discretion by ordering him to serve the

remainder of his suspended sentence. When reviewing a revocation decision,

we consider only the evidence most favorable to the judgment without assessing

credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

We affirm unless the trial court abused its discretion. 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.

[6] Starks admitted his violation, and “proof of a single violation of the conditions

of probation is sufficient to support the decision to revoke probation.” Bussberg

v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g denied, trans. denied. On

finding a defendant violated his probation, the trial court may “[o]rder

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

sentencing.” Ind. Code § 35-38-2-3(h) (2016).

[7] Starks has an extensive criminal history, with offenses ranging from public

intoxication to strangulation and burglary. At the time of the Marion County

Offenses, Starks was also on home detention for a burglary in Hendricks

10 The parties appear to agree this was the remainder of his suspended sentence.

Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 4 of 5 County. While Starks professed to be a family man, the trial court noted the

victim in his strangulation case was the mother of his children. In light of the

fact that Starks was serving separate terms of probation and home detention

when he committed these new crimes, which included strangulation of the

mother of his four children, we find no abuse of discretion in the court’s

imposition of 730 days of Starks’ suspended sentence. See, e.g., Pierce v. State, 44

N.E.3d 752, 755 (Ind. Ct. App. 2015) (revocation of probation appropriate after

probationer committed crimes while on probation).

Conclusion [8] The trial court did not abuse its discretion when it ordered Starks to serve 730

days of his suspended sentence following the revocation of his probation.

Accordingly, we affirm.

[9] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 69A01-1608-CR-1926 | January 26, 2017 Page 5 of 5