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 May 31 2013, 9:20 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER Shelby County Public Defender Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOSHUA SHAY MORRIS, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1211-CR-528 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable David N. Riggins, Judge Cause No. 73D02-1103-FD-19
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Joshua Shay Morris appeals his sentence following the revocation of his probation.
Morris raises one issue, which we revise and restate as whether the trial court abused its
discretion in ordering him to serve 602 days of his previously suspended sentence. We
affirm.
FACTS AND PROCEDURAL HISTORY
On June 27, 2011, Morris pled guilty to operating a vehicle while intoxicated
causing serious bodily injury as a class D felony. On July 6, 2011, the court sentenced
Morris to 1,095 days all of which were suspended except for 365 days. The court further
ordered that the “[b]alance of executed sentence is to be served as a direct commitment to
Community Corrections on Home Detention,” and that Morris be placed on probation for
730 days. Appellant’s Appendix at 32. As part of the special conditions of probation, the
sentencing order states: “You shall participate in the Court’s Indiana Judicial Centers
approved ADA Program and pay all associated fees.” Id. at 34.
On October 26, 2011, the Shelby County Probation Department filed a petition to
revoke probation alleging that Morris violated the terms of probation on October 25,
2011, when he was unsuccessfully discharged from the ADA Program. On February 6,
2012, the court found that Morris violated probation by being unsuccessfully discharged
from the ADA Program, ordered that Morris serve eight days of the previously suspended
sentence, and ordered that all terms and conditions of probation remain in full force and
effect.
On August 21, 2012, the Shelby County Probation Department filed a second
petition to revoke probation alleging that Morris violated the terms of his probation on
2 July 26, 2012, by again being unsuccessfully discharged from the ADA Program. On
October 31, 2012, the court held a hearing, and Morris admitted violating probation by
being unsuccessfully discharged from the ADA Program.
When asked to explain how he violated his probation, Morris testified that he “had
to go from Johnson County, Indiana to Jackson County, Indiana,” that “[i]t cost a lot of
money and [he had] two . . . $40.00 classes left.” Transcript at 6-7. Morris testified that
he attempted to “get those dates changed and somewhere there down the line there’s been
phone calls missed, phone calls not missed. . . . Long story short, there’s just been a little
bit of miscommunication here and there.” Id. at 7. Upon questioning by the trial court,
Morris testified that he had “some disability issues going on,” that he was unable to work
as an auto tech because he broke his right arm and “[i]t’s numb from the elbow down.
It’s, it’s a, not, not an operable repair.” Id. at 8-9. Morris indicated that he had been in
the process of applying for disability for a couple of years. He also testified that he has
six children and that he helps support them.
Deanna Holder, Morris’s probation officer, testified that Morris failed to complete
his counseling at Creative Counseling and was just discharged again from the ADA
Program. Holder also testified that the phone numbers that Morris provided her were not
working.
At the end of the hearing, the prosecutor requested that Morris be ordered to serve
his previously suspended sentence. Morris’s attorney requested that Morris receive fifty-
eight days incarceration and that the terms of probation remain in force. The court found
3 that Morris could obtain a job and violated his probation, and ordered him to serve 602
days of the previously suspended sentence.
DISCUSSION
The issue is whether the court abused its discretion in ordering Morris to serve 602
days of his previously suspended sentence. Morris appears to argue that the trial court
abused its discretion because he had only two classes left to complete and he gave
reasons as to why those two classes were not completed. Morris contends that he
“explained he had transportation issues due to him moving to Jackson County” and that
“due to a medical condition, he was not working and unable to attend the classes.”
Appellant’s Brief at 9. Morris also argues that the trial court “did not even note, in its
sentence, that [he] completed all but two (2) of the classes.” Id. He asserts that “[h]e
deserved some punishment for his violation but the sentence handed out by the trial court
was an abuse of the discretion given to that court.”1 Id. at 7.
The State argues that the trial court exercised proper discretion in ordering Morris
to serve 602 days of his previously suspended sentence. The State points out that the
instant case is the result of Morris’s second violation of the specific condition of
probation, that it was Morris’s choice to move and “if moving made it more difficult to 1 While Morris argues in the summary of the argument section of his brief that he gave an explanation to the trial court “that he did not complete because of transportation and financial issues,” he does not develop the argument that he did not complete the ADA Program because he did not have the ability to pay. Appellant’s Brief at 6-7. Rather, he focuses on the sentence imposed following revocation. Specifically, at the hearing, Morris’s attorney requested that he receive a sentence of fifty- eight days of incarceration, and on appeal, Morris phrases the issue as whether the trial court abused its discretion in its sentencing. To the extent that Morris’s reference to “financial issues” in his brief suggests that the trial court erred in revoking his probation, we conclude that Morris fails to develop the argument. Consequently, this issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument). 4 attend his required ADA classes it was by [his] own doing,” and that Morris “did not
establish that his alleged medical condition made it impossible to find suitable work.”
Appellee’s Brief at 7.
At the time of Morris’s violation and the probation revocation hearing, Ind. Code
§ 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial court finds a
probation violation and provides:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:
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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 May 31 2013, 9:20 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER Shelby County Public Defender Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOSHUA SHAY MORRIS, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1211-CR-528 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT The Honorable David N. Riggins, Judge Cause No. 73D02-1103-FD-19
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Joshua Shay Morris appeals his sentence following the revocation of his probation.
Morris raises one issue, which we revise and restate as whether the trial court abused its
discretion in ordering him to serve 602 days of his previously suspended sentence. We
affirm.
FACTS AND PROCEDURAL HISTORY
On June 27, 2011, Morris pled guilty to operating a vehicle while intoxicated
causing serious bodily injury as a class D felony. On July 6, 2011, the court sentenced
Morris to 1,095 days all of which were suspended except for 365 days. The court further
ordered that the “[b]alance of executed sentence is to be served as a direct commitment to
Community Corrections on Home Detention,” and that Morris be placed on probation for
730 days. Appellant’s Appendix at 32. As part of the special conditions of probation, the
sentencing order states: “You shall participate in the Court’s Indiana Judicial Centers
approved ADA Program and pay all associated fees.” Id. at 34.
On October 26, 2011, the Shelby County Probation Department filed a petition to
revoke probation alleging that Morris violated the terms of probation on October 25,
2011, when he was unsuccessfully discharged from the ADA Program. On February 6,
2012, the court found that Morris violated probation by being unsuccessfully discharged
from the ADA Program, ordered that Morris serve eight days of the previously suspended
sentence, and ordered that all terms and conditions of probation remain in full force and
effect.
On August 21, 2012, the Shelby County Probation Department filed a second
petition to revoke probation alleging that Morris violated the terms of his probation on
2 July 26, 2012, by again being unsuccessfully discharged from the ADA Program. On
October 31, 2012, the court held a hearing, and Morris admitted violating probation by
being unsuccessfully discharged from the ADA Program.
When asked to explain how he violated his probation, Morris testified that he “had
to go from Johnson County, Indiana to Jackson County, Indiana,” that “[i]t cost a lot of
money and [he had] two . . . $40.00 classes left.” Transcript at 6-7. Morris testified that
he attempted to “get those dates changed and somewhere there down the line there’s been
phone calls missed, phone calls not missed. . . . Long story short, there’s just been a little
bit of miscommunication here and there.” Id. at 7. Upon questioning by the trial court,
Morris testified that he had “some disability issues going on,” that he was unable to work
as an auto tech because he broke his right arm and “[i]t’s numb from the elbow down.
It’s, it’s a, not, not an operable repair.” Id. at 8-9. Morris indicated that he had been in
the process of applying for disability for a couple of years. He also testified that he has
six children and that he helps support them.
Deanna Holder, Morris’s probation officer, testified that Morris failed to complete
his counseling at Creative Counseling and was just discharged again from the ADA
Program. Holder also testified that the phone numbers that Morris provided her were not
working.
At the end of the hearing, the prosecutor requested that Morris be ordered to serve
his previously suspended sentence. Morris’s attorney requested that Morris receive fifty-
eight days incarceration and that the terms of probation remain in force. The court found
3 that Morris could obtain a job and violated his probation, and ordered him to serve 602
days of the previously suspended sentence.
DISCUSSION
The issue is whether the court abused its discretion in ordering Morris to serve 602
days of his previously suspended sentence. Morris appears to argue that the trial court
abused its discretion because he had only two classes left to complete and he gave
reasons as to why those two classes were not completed. Morris contends that he
“explained he had transportation issues due to him moving to Jackson County” and that
“due to a medical condition, he was not working and unable to attend the classes.”
Appellant’s Brief at 9. Morris also argues that the trial court “did not even note, in its
sentence, that [he] completed all but two (2) of the classes.” Id. He asserts that “[h]e
deserved some punishment for his violation but the sentence handed out by the trial court
was an abuse of the discretion given to that court.”1 Id. at 7.
The State argues that the trial court exercised proper discretion in ordering Morris
to serve 602 days of his previously suspended sentence. The State points out that the
instant case is the result of Morris’s second violation of the specific condition of
probation, that it was Morris’s choice to move and “if moving made it more difficult to 1 While Morris argues in the summary of the argument section of his brief that he gave an explanation to the trial court “that he did not complete because of transportation and financial issues,” he does not develop the argument that he did not complete the ADA Program because he did not have the ability to pay. Appellant’s Brief at 6-7. Rather, he focuses on the sentence imposed following revocation. Specifically, at the hearing, Morris’s attorney requested that he receive a sentence of fifty- eight days of incarceration, and on appeal, Morris phrases the issue as whether the trial court abused its discretion in its sentencing. To the extent that Morris’s reference to “financial issues” in his brief suggests that the trial court erred in revoking his probation, we conclude that Morris fails to develop the argument. Consequently, this issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument). 4 attend his required ADA classes it was by [his] own doing,” and that Morris “did not
establish that his alleged medical condition made it impossible to find suitable work.”
Appellee’s Brief at 7.
At the time of Morris’s violation and the probation revocation hearing, Ind. Code
§ 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial court finds a
probation violation and provides:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
The Indiana Supreme Court has held that 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). The Court 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” and that “[i]f 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.” Id. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id. (citation omitted). As long as the proper procedures have been 5 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 record reveals that Morris admitted at the revocation hearing that he violated
his probation by not attending all of his ADA Program classes. The trial court
acknowledged Morris’s admission when it stated “I’m giving you 120 days off because
you walked in a [sic] pled guilty.” Transcript at 15. Given the circumstances as set forth
above and in the record including that this was the second time that Morris failed to
complete the ADA Program, we cannot say that the court abused its discretion in
ordering Morris to serve 602 days of his previously suspended sentence. See Milliner v.
State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008) (holding that the trial court did not abuse
its discretion in reinstating the probationer’s previously suspended sentence), trans.
denied.
For the foregoing reasons, we affirm the trial court’s order that Morris serve 602
days of his previously suspended sentence.
Affirmed.
RILEY, J., and PYLE, J., concur.