Joseph Adams v. State of Indiana

Opinion

Pursuant to Ind.Appellate Rule 65(D),

FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Apr 12 2012, 8:50 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN T. WILSON GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOSEPH ADAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 33A04-1110-CR-562 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Bob Witham, Judge Cause No. 33D02-1106-FD-147, 33D02-0703-FD-77

April 12, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge Case Summary

Joseph Adams appeals his sentence for Class B misdemeanor criminal mischief

and the revocation of his probation. We affirm.

Issue

Adams raises one issue, which we restate as whether the trial court abused its

discretion by requiring Adams to serve his sentences in the Henry County Jail as opposed

to an alternative placement.

Facts

In 2009, Adams was convicted of two counts of Class D felony theft and

sentenced to two years in the Henry County Jail on each count, and the sentences were

ordered to be served concurrently. On May 16, 2011, the trial court modified the

sentence to two years suspended to probation.

On June 7, 2011, the State charged Adams with Class D felony residential entry

and Class B misdemeanor criminal mischief for an incident that occurred on June 2,

2011. On June 27, 2011, a petition to revoke Adams’s probation was filed. On August

31, 2011, Adams pled guilty to the criminal mischief charge and admitted to violating his

probation. In exchange for Adams’s guilty plea, the State dismissed the residential entry

charge.

On September 14, 2011, the trial court sentenced Adams to sixty days in the Henry

County Jail for the criminal mischief conviction. The trial court also revoked Adams’s

probation and ordered him to serve the remainder of his two-year sentence in the Henry

2 County Jail. The trial court ordered the sentence on the probation revocation to be served

consecutive to the sentence on the criminal mischief conviction. Adams now appeals

both decisions.

Analysis

Adams argues that the trial court abused its discretion by ordering him to serve his

criminal mischief sentence and his previously-suspended two-year sentence in the Henry

County Jail as opposed to an alternative placement such as work release. In general, we

review a challenge to a trial court’s sentence for an abuse of discretion. Adams v. State,

960 N.E.2d 793, 796 (Ind. 2012) (citing Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). “An abuse of discretion occurs when the

decision clearly contravenes the logic and effect of the facts and circumstances before the

court.” Id. at 796-97. Likewise, a trial court’s sentencing decisions for probation

violations are reviewable using the abuse of discretion standard. Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). “A defendant is not entitled to serve a sentence in either

probation or a community corrections program. Rather, placement in either 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).

Adams argues that his placement in the Henry County Jail was an abuse of

discretion because he pled guilty to the criminal mischief charge and admitted to the

probation violation, he had been working, no one was injured during the commission of

the offense, the criminal mischief was unlikely to reoccur, and he had been paying court-

ordered restitution. As the trial court explained, however, it had modified Adams’s two-

3 year sentence to probation less than a month before he committed the criminal mischief.

The trial court also observed that Adams was also serving probation in another county.

Under these circumstances, Adams has not established that the trial court abused its

discretion in ordering him to serve his criminal mischief sentence and the remainder of

his two-year sentence in the Henry County Jail.1

Conclusion

Adams has not established that the trial court abused its discretion by ordering him

to serve his criminal mischief sentence and the remainder of his two-year sentence in the

Henry County Jail. We affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.

1 Adams references Indiana Appellate Rule 7(B) but does not develop a separate argument establishing that his sentence is inappropriate. Thus, this argument is waived. See Allen v. State, 875 N.E.2d 783, 788 n.8 (Ind. Ct. App. 2007) (noting that the failure to develop a separate inappropriateness argument results in waiver).