Benjamin J. Selig v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 5, 2019
• Docket: 19A-CR-535
• 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 Sep 05 2019, 8:36 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Benjamin J. Selig, September 5, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-535 v. Appeal from the Vigo Superior Court State of Indiana, The Hon. Michael J. Lewis, Judge Appellee-Plaintiff. Trial Court Cause No. 84D06-1610-F5-2861

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 1 of 5 Case Summary [1] In May of 2018, following Benjamin Selig’s guilty plea to Level 5 felony

assisting a criminal, the trial court sentenced him to four years of incarceration,

all suspended to probation. In January of 2019, Selig admitted that he had

violated the terms of his probation, and, the next month, the trial court ordered

Selig to serve the balance of his previously-suspended sentence. Selig contends

that the trial court abused its discretion in revoking his probation and ordering

him to serve the balance of his previously-suspended sentence. Because we

disagree, we affirm.

Facts and Procedural History [2] On or shortly before October 24, 2016, John Collins broke into the home of

Matt Luecking, stole several items, and struck him on the head with a blunt

object, killing him. At around 4:30 a.m., Collins called Selig and told him that

he needed to talk. When the duo met in Rockville, Collins told Selig what he

had done. Selig drove Collins to Terre Haute so that Collins could get some

clothes, and the duo returned to Rockville. On October 26, 2016, the State

charged Selig with Level 5 felony assisting a criminal. On May 23, 2018, Selig

pled guilty as charged, and, pursuant a plea agreement, the trial court sentenced

him to four years of incarceration, all suspended to probation.

[3] On October 16, 2018, the State petitioned to revoke Selig’s probation, alleging

that he had failed to report to his probation officer as required on October 3,

2018. Selig had ended up reporting one day late on October 4, 2018, and then

Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 2 of 5 had attempted to deceive probation officers with a makeshift urinator when a

drug screen was administered. When Selig was referred for a substance-abuse

evaluation, he had reported initially but had never returned for his follow-up

appointment, as instructed. On January 16, 2019, Selig admitted that he had

violated the terms of his probation. On February 6, 2019, the trial court

revoked Selig’s probation and ordered that he serve the balance of his

previously-suspended sentence.

Discussion and Decision [4] Selig argues that the trial court abused its discretion in revoking his probation.

“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) (citing Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005)). The

Indiana Supreme Court has held that “a trial court’s sentencing decisions for

probation violations are reviewable using the abuse of discretion standard[,]”

explaining that

[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. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants. Id.

[5] An abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances. Id. As long as the proper procedures have

Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 3 of 5 been followed in conducting a probation revocation hearing, “the trial court

may order execution of a suspended sentence upon a finding of a violation by a

preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

App. 1999). Indiana Code subsection 35-38-2-3(h)(3) allows a trial court, in

case of a violation of the terms of probation, to “[o]rder execution of all or part

of the sentence that was suspended at the time of initial sentencing” and the

“[c]onsideration and imposition of any alternatives to incarceration is a ‘matter

of grace’ left to the discretion of the trial court.” Monday v. State, 671 N.E.2d

467, 469 (Ind. Ct. App. 1996).

[6] Under the circumstances of this case, Selig has failed to establish an abuse of

discretion. There is no allegation that the proper procedures were not followed

in this case, and Selig admitted that he violated the terms of his probation.

Selig violated the terms of his probation less than five months into it, and we

note that the trial court specifically found that Selig also attempted to thwart a

drug screen using a makeshift urinator.

[7] Moreover, Selig’s history with the criminal justice system indicates that the

solutions attempted to this point have not been effective in deterring him from

further criminal activity. Selig, thirty years old at the time of the revocation

hearing, has an extensive criminal history, including convictions for marijuana

possession and paraphernalia possession in 2006, theft in 2007, illegal

consumption of an alcoholic beverage in 2007, marijuana possession in 2008,

criminal mischief in 2009, possession of a controlled substance in 2010,

marijuana possession in 2010, criminal recklessness in 2011, unlawful

Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 4 of 5 possession of a syringe in 2013, and possession of a controlled substance in

2014, for a total of six prior felony and five prior misdemeanor convictions.

Not including this case, Selig has also violated the terms of probation six times

and has had probation revoked five times. As the trial court observed, “You’ve

had chance after chance. I’m looking through the pre sentence report. One line

the Prosecutor used is, enough is enough and I think that’s it.” Tr. Vol. II p. 39.

[8] Selig argues that he should have been considered for local substance-abuse

treatment programs or community corrections. Even assuming, arguendo, that

Selig would qualify for any of the above placements, similar alternatives to

incarceration have been tried many times in the past to no avail. As mentioned,

Selig has had probation revoked five previous times, most recently in 2015 for

failing to complete a drug treatment program. Selig has also twice completed

CLIFF (an intensive and comprehensive purposeful-incarceration program) and

yet continues to reoffend. Given Selig’s criminal history and the failure of less-

restrictive measures, he has failed to establish an abuse of discretion.

[9] We affirm the judgment of the trial court.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 5 of 5