James M.A. Howard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 12, 2015
• Docket: 84A05-1408-CR-396
• Status: Published

Opinion

MEMORANDUM DECISION Mar 12 2015, 10:15 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James M.A. Howard, March 12, 2015

Appellant-Defendant, Court of Appeals Case No. 84A05-1408-CR-396 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Judge Appellee-Plaintiff. Case No. 84D03-1207-FC-2330

Vaidik, Chief Judge.

Case Summary [1] James M.A. Howard was serving the first year of a three-year probation

sentence when he committed felony burglary. The trial court revoked his

Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015 Page 1 of 5 probation and ordered him to serve two years of his previously suspended three-

year sentence. Howard argues that the trial court abused its discretion in not

returning him to probation. Because the trial court had no reason to believe

that Howard would be deterred from committing more crimes if he remained

on probation, we affirm Howard’s sentence.

Facts and Procedural History [2] In 2012 Howard pled guilty to Class C felony battery by means of a deadly

weapon. Appellant’s App. p. 19. In January 2013 the trial court sentenced him

to five years, with two years “executed as a direct commitment to the Vigo

County Work Release Program” and three years suspended to probation. Id. at

23-24. Because of credit time that Howard had accrued before sentencing, the

court found that he had already “served the executed portion of [his] sentence

in its entirety” and placed him on probation. Id. at 23.

[3] In October 2013, while Howard was serving the first year of his probation

sentence, he broke into a house and barn and stole guns and tools. State’s Ex.

1. The State charged Howard with Class C felony burglary and Class A

misdemeanor criminal trespass. Howard pled guilty to Class C felony burglary

in June 2014.

[4] Meanwhile, in November 2013 the probation department filed a notice of

probation violation alleging that Howard violated his probation by committing

a criminal offense while he was on probation. Appellant’s App. p. 32. At the

Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015 Page 2 of 5 probation-violation hearing in July 2014, Howard admitted that he violated the

terms of his probation. Tr. p. 5. He asked the trial court to “restore[] him to

probation” and give him a chance to get a job, pay his child support, and visit

his son. Id. at 10-11. Howard testified that he was living with his grandparents

at the time of his arrest, but if he were released, he would “[m]ost likely” live at

his aunt’s house. Id. at 8. Howard said that although he was not working at the

time of his arrest, he was “about to start a job in Avon with [his] uncle” at a

steel factory making $10-15/hour. Id.

[5] In pronouncing sentence, the trial court noted its frustration that Howard, while

on probation, did not “gain[] some tools to help himself stay crime-free.” Id. at

16. Instead, nine months after being placed on probation, Howard “committed

a burglary” involving guns. Id. at 17. Accordingly, the trial court ordered that

two years of Howard’s previously suspended three-year sentence be executed at

the Indiana Department of Correction. Id.

[6] Howard now appeals.

Discussion and Decision [7] Howard contends that the trial court abused its discretion in not returning him

to probation. 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 v. State, 878 N.E.2d 184, 187 (Ind. 2007). If

this discretion were not given to trial courts and sentences were scrutinized too

Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015 Page 3 of 5 severely on appeal, trial judges might be less inclined to order probation. Id.

Accordingly, a trial court’s sentencing decision for a probation violation is

reviewable using the abuse-of-discretion standard. Id. An abuse of discretion

occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id.

[8] If a trial court finds that a person has violated his probation before termination

of the period, the court may order execution of all or part of the sentence that

was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h)(3).

Here, Howard argues that he should be returned to probation because “he had

secured full-time employment at a steel factory earning enough money to

support his dependent child,” “he had arranged to live with family members in

a stable environment,” and “he exercised regular parenting time with his son.”

Appellant’s Br. p. 4. This evidence does not show that the trial court abused its

discretion. Howard committed a burglary while serving the first year of a three-

year probation sentence. Moreover, Howard did so while he was already living

with family members (his grandparents) and while he already had parenting

time with his son and was court-ordered to support him. In addition, other

than his own testimony, Howard presented no evidence that he was “about” to

start a job when he was arrested or that the job was still available given his

newest felony conviction. Even if it were true that Howard was taking steps to

improve his life, none of these things stopped him from breaking into a house

and barn to steal guns and tools while he was in the early stage of probation.

Accordingly, the trial court had no reason to believe that Howard would be

Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015 Page 4 of 5 deterred from committing more crimes if he remained on probation. We

therefore affirm Howard’s sentence.

[9] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015 Page 5 of 5