Fernando A. Pedroza v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 14, 2019
• Docket: 19A-CR-401
• 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 Aug 14 2019, 6:54 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Brooklyn, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Fernando A. Pedroza, August 14, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-401 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Trent Meltzer, Appellee-Plaintiff. Judge Trial Court Cause No. 73C01-0811-FB-28

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 1 of 9 Case Summary

[1] Fernando A. Pedroza appeals the revocation of his probation. We affirm.

Issue

[2] The sole issue before us is whether the trial court abused its discretion in

revoking Pedroza’s probation.

Facts

[3] On November 18, 2008, Pedroza was charged in Shelby County with Count I,

armed robbery, a Class B felony; Count II, criminal confinement, a Class B

felony; and Count III, theft, a Class D felony (the “first Shelby County

offense”). 1 On December 10, 2009, Pedroza and the State entered into a plea

agreement in which Pedroza pleaded guilty to Count I; Counts II and III were

dismissed. Pedroza was sentenced to eleven years with seven years executed,

the balance suspended to four years probation. Pedroza served his executed

sentence and was released on June 29, 2012, to begin probation.

[4] Between June 29, 2012, and February 5, 2013, during the time Pedroza was

serving probation for the first Shelby County offense, Pedroza was charged with

committing two new, separate offenses. The first new offense occurred on

January 17, 2013, in Shelby County (the “second Shelby County offense”); and

the second new offense occurred on January 28, 2013, in Marion County (the

1 Cause No. 73C01-0811-FB-28.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 2 of 9 “Marion County offense”). Although the second Shelby County offense

occurred first, Pedroza was charged with and convicted of the Marion County

offense first. The sequence of events is as follows.

[5] On February 5, 2013, the State filed a petition to revoke Pedroza’s probation on

the first Shelby County offense after Pedroza committed the Marion County

offense on January 28, 2013. 2 In the Marion County offense, Pedroza was

convicted of burglary, a Class B felony and five counts of robbery while armed

with a deadly weapon or results in bodily injury to another person, Class B

felonies. Pedroza was sentenced to twenty-eight years executed to be followed

by two years of probation.

[6] According to both Pedroza and the State in their briefs, the petition to revoke in

the first Shelby County offense was dismissed after Pedroza entered a

memorandum of understanding (“MOU”) with the State wherein Pedroza

provided a “clean up” statement to police regarding a pending Shelby County

investigation. See Appellant’s Br. p. 6; see also Appellee’s Br. p. 7. The petition

to revoke Pedroza’s probation was dismissed on October 23, 2014.

2 In the pre-sentence investigation report (“PSI”) there are two Marion County offenses listed as occurring on January 23, 2013, in Cause No. 49G03-1305-FB-27875 and January 28, 2013, in Cause No. 49G03-1301-FB- 6471. We are unclear whether these are the result of separate events; however, it appears that these causes were either combined or for some reason the State only proceeded with charges on the offenses that occurred on January 28, 2013. We, therefore, only outline in our opinion the charges for which Pedroza was convicted in Marion County.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 3 of 9 [7] Following Pedroza’s statement, on December 5, 2014, Pedroza was charged

with the second Shelby County offense which he committed while on probation

in the first Shelby County offense. 3 The second Shelby County offense occurred

on January 17, 2013—prior to the Marion County offense—however police

were not able to determine Pedroza’s involvement until after the filing of the

Marion County offense. In the second Shelby County offense, Pedroza was

charged with Count I, burglary resulting in bodily injury, a Class A felony;

Count II, robbery when the defendant is armed or bodily injury resulted, a

Class B felony; and Count III, theft, a Class D felony. Pursuant to his plea

agreement, Pedroza pleaded guilty to Counts I and II, and Count III was

dismissed. The State agreed that, in exchange, Pedroza’s sentences in Count I

and II would run concurrently to one another and concurrently to the sentence

in the Marion County offense. On August 17, 2018, Pedroza was sentenced in

the second Shelby County offense to fifty years executed.

[8] On June 26, 2018, the State filed another petition to revoke Pedroza’s probation

in the first Shelby County offense as a result of Pedroza’s second Shelby County

offense, which Pedroza also committed while on probation. A fact finding

hearing was held on November 15, 2018 and the trial court requested briefs

regarding the issue of whether the State timely filed its petition to revoke

probation. On January 17, 2019, the trial court held a dispositional hearing and

determined that it could revoke Pedroza’s probation based on the State’s

3 Cause No. 73D01-1412-FA-23.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 4 of 9 petition. The trial court revoked Pedroza’s probation in the first Shelby County

offense and ordered Pedroza to serve four years in the Indiana Department of

Correction (“DOC”). Pedroza now appeals.

Analysis

[9] Probation serves as an “alternative to commitment in the [Department of

Correction]” and is granted “at the sole discretion of the trial court.” Luke v.

State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016) (citing Cox v. State, 706 N.E.2d

547, 549 (Ind. 1999), reh’g denied), trans. denied. Probation is “a ‘matter of grace’

and a ‘conditional liberty that is a favor, not a right.’” Luke, 51 N.E.3d at 421

(quoting Cox, 706 N.E.2d at 549). “[A] revocation hearing is civil in nature, the

State needing only to prove the alleged violations by a preponderance of the

evidence.” Luke, 51 N.E.3d at 421. A violation of a single probation condition

is sufficient to revoke probation, and if “there is substantial evidence of

probative value to support the trial court’s conclusion that a defendant has

violated any terms of probation, we will affirm its decision to revoke.” Id.

[10] Indiana Code Section 35-38-2-3(a), which is at issue here, provides:

The court may revoke a person’s probation if:

(1) the person has violated a condition of probation during the probationary period; and

(2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 5 of 9 (A) One (1) year after the termination of probation.

(B) Forty-five (45) days after the state receives notice of the violation.

Here, Indiana Code Section 35-38-2-3(a)(2)(A) or (B) would not apply because

the State was aware of Pedroza’s violation when he was charged with the

second Shelby County offense in 2014.

[11] Pedroza argues that the trial court lacked the authority to revoke his probation

because the State’s petition to revoke was untimely filed. Specifically, the

disagreement between Pedroza and the State appears to be whether Pedroza

was still in the probationary period on June 26, 2018, when the State filed the

petition to revoke. Pedroza contends that his probationary period in the first

Shelby County offense ended on March 16, 2018, while he was incarcerated for

his other offenses, whereas the State argues that Pedroza’s probationary period

was tolled due to Pedroza’s incarceration. It does not appear that the parties

disagree that Pedroza’s probation was at least tolled between when the State

filed the petition to revoke probation on February 5, 2013, and when the

petition was dismissed on October 23, 2014. See Ind. Code § 35-38-2-3(c) (“The

issuance of a summons or warrant tolls the period of probation until the final

determination of the charge.”).

[12] In short, we must determine whether Pedroza’s probationary period began

running again on October 23, 2014, when the State dismissed the initial petition

to revoke probation, and while Pedroza was still incarcerated. If the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 6 of 9 probationary period was tolled due to Pedroza’s constant incarceration, the

State’s petition was timely filed; however, if Pedroza’s probationary period was

completed while he was incarcerated, the State’s petition would have been

untimely filed and Pedroza’s probation would have been improperly revoked.

[13] In Hart v. State, 889 N.E.2d 1266, 1271 (Ind. Ct. App. 2008), our Court stated:

Thus, “[p]robation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006) (emphasis added). “This gives the defendant an opportunity to show he is able to rehabilitate himself and become a useful member of society without serving his time in prison” as well as “gives the sentencing court an opportunity to observe the defendant’s conduct during this period.” White v. State, 560 N.E.2d 45, 46 (Ind.1990). Given the rehabilitative purpose of probation, a process which can only be accomplished outside the confines of prison, it is axiomatic that “[o]ne may not be simultaneously on probation and serving an executed sentence.” Thurman v. State, 162 Ind. App. 576, 320 N.E.2d 795, 797 (Ind. 1974).

Hart v. State, 889 N.E.2d 1266, 1271 (Ind. Ct. App. 2008) (emphasis added).

While the facts in Hart are distinguishable from the present case because Hart

had not begun the actual monitoring portion of probation whereas Pedroza had

begun the actual monitoring portion of probation, other facts in Pedroza’s case

allow us to reach the same conclusion.

[14] Under the circumstances, Pedroza cannot convince us that he was

simultaneously completing his probation while incarcerated. We need not

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 7 of 9 address the issue of whether a defendant can serve his actual probation and

executed sentence simultaneously because, in our case, Pedroza was required to

serve his sentences consecutively. Specifically, Pedroza committed two

probation violations by committing new offenses while on probation for the first

Shelby County offense. Pursuant to Indiana Code Section 35-50-1-2(e):

If, after being arrested for one (1) crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first time; or

...

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and the sentences are imposed.

[15] Accordingly, the sentences for the first Shelby County offense and the second

two offenses (the second Shelby County offense and the Marion County

offense, which run concurrently to one another pursuant to a plea agreement)

were required to run consecutively. Thus, because the sentences are to be

served consecutively, Pedroza’s executed sentence and probation sentence

cannot be served concurrently. Accordingly, it cannot be that probation for one

offense, which runs consecutively to the sentence in another offense, could be

served at the same time.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 8 of 9 [16] If we were to allow the result Pedroza requests, we would effectively overrule

the statute regarding mandatory consecutive offenses by allowing the first

Shelby County offense to run concurrently with the other offenses, instead of

consecutively as the statute requires. Accordingly, the State’s petition to revoke

was timely filed, and the trial court had the discretion to revoke Pedroza’s

probation. The trial court did not abuse its discretion in finding the State’s

petition timely filed.

Conclusion

[17] The trial court did not abuse its discretion in revoking Pedroza’s probation. We

affirm.

[18] Affirmed.

Crone, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019 Page 9 of 9