MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 22 2015, 6:05 am 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 Justin R. Wall Gregory F. Zoeller Wall Legal Services Attorney General of Indiana Huntington, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth L. Collins, October 22, 2015 Appellant-Defendant, Court of Appeals Case No. 35A04-1505-CR-510 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff Judge Trial Court Cause No. 35C01-9906-CF-27
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 1 of 7 [1] In February of 2000, Appellant-Defendant Kenneth L. Collins pled guilty to
Class B felony rape and Class B felony burglary with a deadly weapon. The
trial court accepted Collins’s guilty plea and sentenced him to an aggregate term
of thirty-six years, with twenty-six years executed in the Indiana Department of
Correction (“DOC”) and the remaining ten years suspended to probation.
Collins has since been released from the DOC and placed on probation. Since
the time that Collins was released to probation, he has had his probation
revoked on two separate occasions, not counting the revocation at issue in the
instant appeal.
[2] On December 31, 2014, Appellee-Plaintiff the State of Indiana (the “State”)
filed a petition to revoke Collins’s probation, alleging that Collins had violated
the terms of his probation by testing positive for oxycodone, noroxydcodone,
morphine, and methamphetamine. Collins also admitted that he had used
heroin. On March 16, 2015, the State filed another petition to revoke Collins’s
probation, alleging that Collins had violated the terms of his probation by
testing positive for morphine. Collins subsequently admitted the allegations set
forth in both of the revocation petitions. After determining that Collins had in
fact violated the terms of his probation, the trial court revoked Collins’s
probation and ordered Collins to serve the remaining balance of his previously-
suspended sentence in the DOC.
[3] On appeal, Collins contends that the trial court abused its discretion in
ordering him to serve the remaining balance of his previously-suspended ten-
year sentence in the DOC. Concluding otherwise, we affirm.
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 2 of 7 Facts and Procedural History [4] On February 7, 2000, Collins pled guilty to Class B felony rape and Class B
felony burglary with a deadly weapon. The trial court accepted Collins’s guilty
plea and, on March 13, 2000, sentenced Collins to an aggregate term of thirty-
six years, the last ten years of which were suspended to probation. After
completing the executed portion of his sentence, Collins was released from the
DOC and placed on probation.
[5] On June 7, 2011, the State filed a petition to revoke Collins’s probation,
alleging that Collins had violated the terms of his probation by refusing to
submit to a drug screen on May 25, 2011, and testing positive for marijuana and
methadone. On August 1, 2011, Collins admitted that he had committed the
alleged violations and the trial court ordered Collins to serve 120 days of his
previously suspended sentence. On May 31, 2013, the State filed a second
petition to revoke Collins’s probation, alleging that Collins had tested positive
for THC. On September 9, 2013, Collins admitted that he had committed the
alleged violation and the trial court ordered Collins to serve one year of his
previously suspended sentence.
[6] On December 31, 2014, the State filed a third petition to revoke Collins’s
probation, alleging that Collins had violated the terms of his probation by
testing positive for oxycodone, noroxydcodone, morphine, and
methamphetamine. The petition further alleged that Collins had also admitted
that he had used heroin. While the third petition was pending, on March 16,
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 3 of 7 2015, the State filed a fourth petition to revoke Collins’ probation, alleging that
Collins had violated the terms of his probation by testing positive for morphine.
[7] On May 18, 2015, Collins admitted the allegations set forth in both the third
and fourth revocation petitions. After determining that Collins had in fact
violated the terms of his probation, the trial court revoked Collins’s probation
and ordered Collins to serve the remaining balance of his previously-suspended
sentence in the DOC. This appeal follows.
Discussion and Decision [8] Collins contends that the trial court abused its discretion in ordering him to
serve the remaining balance of his previously suspended ten-year sentence in
the DOC.
Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. 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. Accordingly, a trial court’s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 4 of 7 Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks
omitted).
[9] Indiana Code section 35-38-2-3 provides, in relevant part, as follows:
(a) 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….
****
(h) 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 violation of a single condition of probation is sufficient to revoke
probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 5 of 7 [10] The record demonstrates that, to date, Collins has admitted to violating the
terms of his probation on at least four separate occasions. The trial court
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 22 2015, 6:05 am 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 Justin R. Wall Gregory F. Zoeller Wall Legal Services Attorney General of Indiana Huntington, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth L. Collins, October 22, 2015 Appellant-Defendant, Court of Appeals Case No. 35A04-1505-CR-510 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff Judge Trial Court Cause No. 35C01-9906-CF-27
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 1 of 7 [1] In February of 2000, Appellant-Defendant Kenneth L. Collins pled guilty to
Class B felony rape and Class B felony burglary with a deadly weapon. The
trial court accepted Collins’s guilty plea and sentenced him to an aggregate term
of thirty-six years, with twenty-six years executed in the Indiana Department of
Correction (“DOC”) and the remaining ten years suspended to probation.
Collins has since been released from the DOC and placed on probation. Since
the time that Collins was released to probation, he has had his probation
revoked on two separate occasions, not counting the revocation at issue in the
instant appeal.
[2] On December 31, 2014, Appellee-Plaintiff the State of Indiana (the “State”)
filed a petition to revoke Collins’s probation, alleging that Collins had violated
the terms of his probation by testing positive for oxycodone, noroxydcodone,
morphine, and methamphetamine. Collins also admitted that he had used
heroin. On March 16, 2015, the State filed another petition to revoke Collins’s
probation, alleging that Collins had violated the terms of his probation by
testing positive for morphine. Collins subsequently admitted the allegations set
forth in both of the revocation petitions. After determining that Collins had in
fact violated the terms of his probation, the trial court revoked Collins’s
probation and ordered Collins to serve the remaining balance of his previously-
suspended sentence in the DOC.
[3] On appeal, Collins contends that the trial court abused its discretion in
ordering him to serve the remaining balance of his previously-suspended ten-
year sentence in the DOC. Concluding otherwise, we affirm.
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 2 of 7 Facts and Procedural History [4] On February 7, 2000, Collins pled guilty to Class B felony rape and Class B
felony burglary with a deadly weapon. The trial court accepted Collins’s guilty
plea and, on March 13, 2000, sentenced Collins to an aggregate term of thirty-
six years, the last ten years of which were suspended to probation. After
completing the executed portion of his sentence, Collins was released from the
DOC and placed on probation.
[5] On June 7, 2011, the State filed a petition to revoke Collins’s probation,
alleging that Collins had violated the terms of his probation by refusing to
submit to a drug screen on May 25, 2011, and testing positive for marijuana and
methadone. On August 1, 2011, Collins admitted that he had committed the
alleged violations and the trial court ordered Collins to serve 120 days of his
previously suspended sentence. On May 31, 2013, the State filed a second
petition to revoke Collins’s probation, alleging that Collins had tested positive
for THC. On September 9, 2013, Collins admitted that he had committed the
alleged violation and the trial court ordered Collins to serve one year of his
previously suspended sentence.
[6] On December 31, 2014, the State filed a third petition to revoke Collins’s
probation, alleging that Collins had violated the terms of his probation by
testing positive for oxycodone, noroxydcodone, morphine, and
methamphetamine. The petition further alleged that Collins had also admitted
that he had used heroin. While the third petition was pending, on March 16,
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 3 of 7 2015, the State filed a fourth petition to revoke Collins’ probation, alleging that
Collins had violated the terms of his probation by testing positive for morphine.
[7] On May 18, 2015, Collins admitted the allegations set forth in both the third
and fourth revocation petitions. After determining that Collins had in fact
violated the terms of his probation, the trial court revoked Collins’s probation
and ordered Collins to serve the remaining balance of his previously-suspended
sentence in the DOC. This appeal follows.
Discussion and Decision [8] Collins contends that the trial court abused its discretion in ordering him to
serve the remaining balance of his previously suspended ten-year sentence in
the DOC.
Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. 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. Accordingly, a trial court’s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 4 of 7 Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks
omitted).
[9] Indiana Code section 35-38-2-3 provides, in relevant part, as follows:
(a) 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….
****
(h) 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 violation of a single condition of probation is sufficient to revoke
probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 5 of 7 [10] The record demonstrates that, to date, Collins has admitted to violating the
terms of his probation on at least four separate occasions. The trial court
ordered partial execution of Collins’s previously-suspended sentence following
the first two violations. Collins did not refrain from committing additional
violations and continued to violate the terms of his probation. In ordering
Collins to serve the remaining balance of his previously-suspended ten-year
sentence, following the third and fourth violations, the trial court stated:
The Court looks at the past, and the past in this case is two petitions to revoke, the third was filed December 31st, and the fourth was filed March the 16th. Uh, I’ve tried. It would appear that you haven’t. The Court’s going to issue the remainder of the time.
Tr. p. 9.
[11] In arguing that the trial court abused its discretion in ordering him to serve the
remainder of his suspended sentence, Collins claims that he became addicted to
drugs and prescription medications after sustaining a work-related injury.
Collins argues that the trial court should have imposed a lesser sentence
because he has acknowledged his addiction, has requested help for his addition,
and incarceration will not afford him the ability to seek the treatment he
desperately needs. In making this argument, however, Collins is merely
requesting this court to substitute our judgment for that of the trial court, which
we will not do without a showing of abuse of the trial court’s discretion.
Indiana Code section 35-38-2-3(h) provides that if the trial court determines that
a person has violated the terms of their probation, the trial court may “[o]rder
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 6 of 7 execution of all or part of the sentence that was suspended at the time of initial
sentencing.” (Emphasis added). Thus, pursuant to the clear language of
Indiana Code section 35-38-2-3(h), the trial court acted within its discretion in
ordering execution of all of the remaining balance of Collins’s suspended
sentence.
[12] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015 Page 7 of 7