Benjamin David Stein v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2020
• Docket: 19A-CR-1841
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2020, 10:17 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 Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Benjamin David Stein, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1841 v. Appeal from the Fountain Circuit Court State of Indiana, The Honorable Stephanie S. Appellee-Plaintiff Campbell, Judge Trial Court Cause No. 23C01-1605-F6-163

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020 Page 1 of 5 Statement of the Case [1] Benjamin Stein (“Stein”) appeals the trial court’s judgment ordering him to

serve the balance of his previously suspended sentence after he violated

probation. Finding no abuse of the trial court’s discretion, we affirm the trial

court’s judgment.

[2] We affirm.

Issue Whether the trial court abused its discretion in ordering Stein to serve the balance of his previous suspended sentence after he violated probation.

Facts [3] In October 2016, Stein pled guilty to two counts of Level 6 felony theft. The

following month, the trial court sentenced him to 1190 days of probation. One

of the terms of his probation was that he not violate any laws.

[4] In September 2017, the probation department filed a notice of violation alleging

that Stein had violated probation by committing the offenses of Class A

misdemeanor driving while suspended and Class B misdemeanor leaving the

scene of an accident. Stein pled guilty to those offenses and was sentenced to

one year of probation. The probation department dismissed the notice of

violation.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020 Page 2 of 5 [5] In March 2019, the probation department filed a second notice of violation

alleging that Stein had violated his probation by committing the offenses of

residential entry and criminal trespass. Stein pled guilty to Class A

misdemeanor criminal trespass in that case.

[6] At a subsequent probation revocation hearing, Stein admitted that he had

violated probation when he committed the offense of criminal trespass. He

asked the trial court to release him back to probation.

[7] The trial court pointed out that this was Stein’s second probation violation and

told Stein that it was “just not understanding why you wouldn’t have taken this

very seriously.” (Tr at 23). The trial court ordered Stein to serve the balance of

his suspended sentence and explained its decision as follows:

You made a deal with this Court that you would behave. You had the one that you were convicted of, now another that you are convicted of. All right? And you knew what the consequences were. You absolutely – you know the ropes. You understand how this works. You want to go out and keep committing crimes then this is what’s going to happen. A deal is a deal. I say it every day, all day.

(Tr. 24). Stein now appeals the trial court’s order that he serve the balance of

his suspended sentence.

Decision [8] Stein argues that the trial court abused its discretion in ordering him to serve the

balance of his previously suspended sentence after he violated probation.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020 Page 3 of 5 “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). Once a trial court has exercised its grace, it has considerable leeway in

deciding how to proceed when the conditions of probation are violated. Id. If

this discretion were not given to trial courts and sentences were scrutinized too

severely on appeal, trial courts might be less inclined to order probation. Id.

Accordingly, a trial court’s sentencing decision for a probation violation is

reviewable for an abuse of discretion. Id. An abuse of discretion occurs when

the trial court’s decision is clearly against the logic and effect of the facts and

circumstances. Id. If a trial court finds that a person has violated his probation

before termination of the probationary period, the court may order execution of

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

sentencing. IND. CODE § 35-38-2-3.

[9] Here, Stein argues that the trial court abused its discretion in ordering him to

serve the balance of his previously suspended sentence. However, the trial

court pointed out that although Stein had agreed to commit no criminal

offenses while on probation, Stein had twice committed additional offenses. In

addition, Stein knew the potential consequences for committing those

additional offenses. Based on these facts, the trial court’s decision to order

Stein to serve the balance of his previously suspended sentence is not clearly

against the logic and effect of the facts and circumstances before it, and the trial

court did not abuse its discretion.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020 Page 4 of 5 [10] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020 Page 5 of 5