David M. Riley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 12, 2020
• Docket: 19A-CR-2109
• 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 Mar 12 2020, 11:03 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 Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana

Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David M. Riley, March 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2109 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause Nos. 84D01-1805-F6-1607 84D01-1805-F6-1677

Shepard, Senior Judge.

[1] David M. Riley appeals the sentence the trial court imposed after determining

he violated the terms of his probation. We affirm.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 1 of 6 [2] On May 1, 2018, the State charged Riley with auto theft, a Level 6 Felony. On

May 17, 2018, he was additionally charged with residential entry, a Level 6

Felony, and battery resulting in bodily injury, a Class A misdemeanor. At the

time, Riley also faced an earlier charge of auto theft. As part of his pre-trial

release, Riley was ordered to participate in the Vigo County Sheriff’s GPS

monitoring program and to undergo a mental health evaluation at the Hamilton

Center. He was subsequently admitted into the residential treatment program

at Hamilton Center, also known as Oak Street.

[3] Less than a month later, the State petitioned to revoke Riley’s pre-trial release

placement, claiming he failed to comply with the program’s call-in

requirements, received five reports for failing to obey staff, and continued to use

methamphetamine resulting in multiple positive drug screens.

[4] On July 13, 2018, Riley entered into a plea agreement with the State in the Vigo

Superior Court to plead guilty to two counts of auto theft as Level 6 Felonies in

case numbers 84DOl-1805-F6-1573 and 84D01-1805-F6-1607, and to 1 residential entry as a Level 6 Felony. The State dismissed the battery charge.

At sentencing, Riley received one year for each cause, to be served

consecutively, all of which was suspended to probation with the condition that

he successfully complete the program at Oak Street. He was then released to

Oak Street. About a month and a half after beginning probation, however, the

1 The sentence for the earlier charge of auto-theft, case number 84D01-1805-F6-1573, had been fully served; therefore, was not an issue for this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 2 of 6 court received notice from the State that Riley was not compliant with the

program. He failed to abide by the rules and tested positive for

methamphetamine; therefore, he failed to complete the program at Oak Street

per court order. Riley’s Adult Probation Officer filed a notice of probation

violation with the court, recommending that a hearing be held.

[5] On March 15, 2019, the trial court held an evidentiary hearing and revoked

Riley’s probation. Following Riley’s revocation, multiple dispositional hearings

occurred with the last one concluding on June 7, 2019. On the same day, Riley

was subsequently placed back on probation, under the following conditions:

[D]efendant shall report daily to his probation officer; be placed on the drug screen call-in line; and get into treatment at [Oak Street]. These additional conditions shall continue until such time as a bed becomes available at [Oak Street]. At that time, defendant shall immediately enroll in that program and he is required to successfully complete the same.

Appellant’s App. Vol. 2, p. 65.

[6] At the time the trial court issued its order, there were no beds available at Oak

Street. Riley contacted Oak Street three times and was told there were no beds

available. Riley’s probation officer also attempted to contact Oak Street but did

not receive any response. During the first four weeks of his new try at

probation, Riley repeatedly tested positive for methamphetamine and THC, in

addition to failing to provide a required drug screen. Appellant’s App. Vol. 2,

pp. 67-68.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 3 of 6 [7] Riley’s Adult Probation Officer filed a second notice of probation violation on

July 15, 2019. On August 29, 2019, Riley admitted to violating his probation,

and the trial court sentenced him to one year and 110 days, after credit time

applied, in the Vigo County Jail, with the possibility of modification after

serving 110 days.

[8] Riley argues that the trial court imposed an inappropriate sentence in response

to his probation violation, citing Indiana Appellate Rule 7(B). Appellate Rule

7(B) “is not the correct standard to apply when reviewing a trial court’s actions

in a post-sentence probation violation proceeding.” Jones v. State, 885 N.E.2d

1286, 1290 (Ind. 2008); see also Prewitt v. State, 878 N.E.2d 184 (Ind. 2007).

Abuse of discretion is the correct standard by which a probation revocation

should be reviewed, as the trial court’s action in sentencing for a probation

violation is not a criminal sentence as contemplated by Ind. App. Rule 7(B).

Jones, 885 N.E.2d at 1290.

[9] Probation, as opposed to incarceration, is a “matter of grace” and a

“conditional liberty that is a favor, not a right.” Cox v. State, 706 N.E.2d 547,

549 (Ind. 1999) (quoting Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App.

1995)). “Once a trial court has exercised its grace by ordering probation rather

than incarceration, the judge should have considerable leeway in deciding how

to proceed.” Prewitt, 878 N.E.2d at 188. This amount of discretion allows trial

judges to choose an alternative sentence, whereas higher scrutiny would

discourage trial court judges from extending that grace by ordering probation to

future defendants. Id; see also Cox, 706 N.E.2d at 550 (“obstacles to revoking an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 4 of 6 alternative sentence may diminish the likelihood of community corrections

placements being made in the first place”). While Indiana case law promotes

uniformity by creating guidelines and standards for sentencing discretion, it

does not so do “at the expense of individualized consideration of each offender

and their offense.” David J. Bodenhamer & Hon. Randall T. Shepard, The

History of Indiana Law, p. 124 (Ohio Univ. Press 2014).

[10] We exercise responsibility on appeal with restraint, recognizing the expertise of

trial courts in making sentencing decisions, and in this particular case, the trial

judge’s familiarity with the facts of the case and the judge’s repeated in-person

interactions with Riley.

[11] The trial court duly recognized Riley’s struggle with addiction noting “that

pipe’s got [a] hold on you. And [I] recognize that and [I] know it’s hard to

kick[,]” but also recognized that “[we] set you up, we give you treatment, back

in; we set you up, give you treatment, back in, and I don’t know what else to do

with you.” Tr. Vol. 2, pp. 19, 21. “At some point, you have to work harder

than we are to keep yourself out.” Id. at 20. Riley exhibited an unwillingness

or inability to conform his behavior to the law, displayed by the violation of his

pre-trial release and the repeated violations of his probation. In addition, the

trial judge directed that after 110 days of incarceration, Riley might seek a

modification of his sentence if he was able to enroll in a legitimate treatment

facility outside of Vigo County. Id. at 20-21.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 5 of 6 [12] Based on Riley’s repeated violations of court orders and probation, the trial

court did not abuse its discretion in revoking probation and ordering Riley to

serve the remainder of his sentence.

[13] For the foregoing reasons, we affirm the judgment of the trial court.

Crone, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 6 of 6