Breon M. Davenport v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 48A02-1604-CR-954
• 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 Feb 28 2017, 7:36 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 Richard Walker Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Breon M. Davenport, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 48A02-1604-CR-954 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge Trial Court Cause No. 48C06-1505-F2-791

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017 Page 1 of 5 [1] Breon M. Davenport (“Davenport”) appeals the Madison Circuit Court’s order

revoking his probation and ordering him to serve his two-year placement in in-

home detention executed in the Department of Correction.

[2] We affirm.

Facts and Procedural History

[3] On May 27, 2015, seventeen-year-old Davenport and his accomplices stole

marijuana from the victim, and during the robbery, Davenport’s accomplice

shot the victim in the hand and thigh. The next day, Davenport was charged as

an adult with Level 2 felony aiding, inducing, or causing robbery resulting in

serious bodily injury, Level 3 felony aiding, inducing, or causing armed

robbery, and Level 3 felony aggravated battery.

[4] On October 20, 2015, Davenport pleaded guilty to Level 5 felony aiding,

inducing, or causing robbery, a lesser included offense of the Level 2 felony

robbery charge, in exchange for dismissal of the remaining charges. On

November 17, 2015, Davenport was ordered to serve a five-year sentence with

three years suspended to probation. The remaining two years were ordered

executed in in-home detention.

Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017 Page 2 of 5 [5] After serving approximately thirty days in in-home detention, Davenport

removed his ankle bracelet1, and his whereabouts became unknown. Therefore,

on January 6, 2016, a warrant was issued for his arrest. Davenport was arrested

on February 9, 2016.

[6] Davenport was taken to the Madison County Youth Center. While the center

was processing Davenport’s arrest, Davenport jumped over a counter, grabbed

a fire extinguisher, and ran into the security booth. The door automatically

locked behind Davenport. A Youth Center employee was trapped inside the

booth with Davenport, and he warned her not to open the door. Using the fire

extinguisher, Davenport smashed the security automated systems electronic

control panel, which controlled the locks for the facility, and damaged two

window panes. The incident continued for approximately ten minutes until law

enforcement personnel were able to calm Davenport and remove him from the

security booth.

[7] At the probation revocation hearing, Davenport admitted that he took

substantial steps toward commission of a new criminal offense, i.e. Level 6

felony escape. The trial court also found that he “took substantial steps in the

commission of the new criminal offense of Criminal Mischief, Class A

1 The State also alleged that Davenport committed theft of the ankle bracelet. However, at the revocation hearing, Davenport stated that he returned the device to the appropriate authority. The trial court found that the State failed to prove that Davenport committed theft.

Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017 Page 3 of 5 misdemeanor” for the acts Davenport committed on February 9, 2016 during

intake at the Youth Center.

[8] After concluding that Davenport violated terms of his probation, the court

observed that he “received a break when [he] got sentenced to In-Home as

opposed to the DOC for a Level 5 felony. That was a heck of a break. And by

your actions you’ve lost that break . . . .” Tr. p. 59. Therefore, the trial court

revoked Davenport’s placement in in-home detention and ordered him to serve

his two-year in-home detention executed in the Department of Correction.

Davenport was given credit for time served. He now appeals.

Discussion and Decision

[9] Trial courts have the authority to place convicted persons in home detention

rather than in the Department of Correction. State v. Vanderkolk, 32 N.E.3d 775,

776-77 (Ind. 2015). “Home detention may be imposed as either a condition of

probation or as an alternative placement that is part of an offender'’ community

corrections program.” Id. at 777. Either way, the placement is a conditional

liberty given at the discretion of the trial court, and we review the trial court’s

revocation thereof under the same standard. Id.

[10] Our standard for reviewing a probation revocation is well settled.

Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Once a trial court has exercised its grace by ordering probation rather than

Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017 Page 4 of 5 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. Accordingly, a trial court’s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

[11] Davenport received a substantial benefit from his plea agreement and a lenient

sentence for the Level 5 felony robbery conviction. He was given the opportunity

to spend two years in in-home detention instead of the Department of

Correction. However, he failed to take advantage of the leniency afforded him.

[12] After serving approximately thirty days of In-Home Detention, Davenport cut

off his ankle monitor and escaped. When he was arrested over a month later,

he locked himself and a Youth Center employee in a security booth, and caused

over $3,000 worth of damage to the Youth Center.

[13] For these reasons, we conclude that the trial court acted within its discretion

when it revoked Davenport’s probation and ordered him to serve his two-year

placement in in-home detention executed in the Department of Correction.

[14] Affirmed.

Baker, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017 Page 5 of 5