Irwin McNeil Scott v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 27 2017, 9:15 am

Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General of Indiana South Bend, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Irwin McNeil Scott, December 27, 2017

Appellant-Respondent, Court of Appeals Case No. 71A04-1706-CR-1222

v. Appeal from the St. Joseph Superior Court State of Indiana, The Hon. Elizabeth Hurley, Judge Trial Court Cause No. Appellee-Petitioner. 71D08-1508-F5-178

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017 Page 1 of 5 Case Summary [1] After Appellant-Respondent Irwin Scott pled guilty to carrying a handgun

without a license in cause number 71D08-1508-F5-178 (“Cause No. 178”), the

trial court suspended three years of his six-year sentence to probation. Less

than a year later, Scott violated the terms of his probation in Cause No. 178 by

committing three new felonies in cause number 71D08-1610-F3-64 (“Cause No.

64”). Following Scott’s guilty plea to those felonies and his admission that their

commission violated the terms of his probation, the trial court ordered that he

serve three years in community corrections followed by three years of probation

in Cause No. 178, to be served after completion of his sentence in Cause No.

64. Scott contends that the trial court abused its discretion in ordering

community corrections followed by probation. Because we disagree, we affirm.

Facts and Procedural History [2] On December 14, 2015, in Cause No. 178, Scott pled guilty to Level 5 felony

carrying a handgun without a license, and the trial court subsequently imposed

a six-year, suspended sentence and ordered three years of probation. On

October 12, 2016, while operating a vehicle under the influence of illegal

substances, Scott fled from police and crashed the vehicle into a pole, flipping

the vehicle over. Scott fled the scene without rendering aid to two eight-year-

old passengers who had sustained serious bodily injury in the crash.

Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017 Page 2 of 5 [3] On October 14, 2016, the State charged Scott in Cause No. 64 with two counts

of Level 3 felony failure to remain at the scene of an accident and Level 6

felony resisting law enforcement. On March 27, 2017, Scott pled guilty as

charged in Cause No. 64 and admitted that he had violated the terms of his

probation in Cause No. 178. On May 10, 2017, the trial court sentenced Scott

in Cause No. 64 to twenty-two years of incarceration. In Cause No. 178, the

trial court ordered Scott to serve three years of his previously-suspended

sentence in community corrections, followed by three years of probation, to be

served upon completion of his sentence in Cause No. 64.

Discussion and Decision [4] Scott argues that the trial court abused its discretion in ordering three years in

community corrections, followed by three years of probation, for violating the

terms of his probation in Cause No. 178. Probation is a “matter of grace” and a

“conditional liberty that is a favor, not a right.” Marsh v. State, 818 N.E.2d 143,

146 (Ind. Ct. App. 2004) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.

1999)). We review a trial court’s probation revocation for an abuse of

discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans.

denied. If the trial court finds that the person violated a condition of probation,

it may order the execution of any part of the sentence that was suspended at the

time of initial sentencing. Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004); see

also Ind. Code § 35-38-2-3(h)(3) (allowing 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.”). Proof of a single violation of

Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017 Page 3 of 5 the conditions of probation is sufficient to support the decision to revoke

probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).

[5] The Indiana Supreme Court has explained 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.

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).

[6] 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

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). 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).

[7] Under the circumstances of this case, Scott has failed to establish an abuse of

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

and Scott admitted that he violated the terms of his probation by committing

three new felonies. Moreover, Scott’s criminal history indicates that the

solutions attempted to this point, including probation, community corrections,

Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017 Page 4 of 5 and incarceration, have not been effective in deterring him from further

criminal activity. The twenty-seven-year-old Scott has previous convictions for

Class C misdemeanor minor consuming alcohol, Class B felony burglary, what

seems to be Class A misdemeanor resisting law enforcement, Class C

misdemeanor driving without ever having had a license, and Class D felony

unlawful possession or use of a legend drug or precursor. Despite this history

and previous attempts at leniency, Scott’s tendency to commit serious crimes is,

if anything, becoming more pronounced. Given Scott’s admission to violating

the terms of his probation and the proven failure of leniency to reform him, we

do not find fault with the trial court’s imposition of three years of community

corrections followed by three years of probation. Scott has failed to establish an

abuse of discretion.

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

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017 Page 5 of 5