Kevin Wayne Owens v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 26, 2020
• Docket: 20A-CR-939
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 26 2020, 8:33 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Wayne Owens, October 26, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-939 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff. Judge Trial Court Cause No. 84D06-1801-F5-336

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 1 of 4 Case Summary [1] Kevin Wayne Owens (“Owens”) appeals an order of the trial court that revoked

his probation and ordered him to serve three years of his previously suspended

sentence in the Indiana Department of Correction (“the DOC”). Owens

presents the issue of whether the trial court abused its discretion when it

ordered him to serve three years in the DOC. We affirm.

Facts and Procedural History [2] On June 17, 2019, Owens pled guilty to Dealing in Methamphetamine, as a

Level 5 felony.1 He was given a suspended six-year sentence, with two years to

be served on formal probation and 936 days to be served on informal probation.

On July 30, 2019, Owens began his formal probation. On September 6, 2019,

he failed to appear for an appointment with his probation officer. He also failed

to notify his probation officer of a change in residence. Specifically, Owens had

left a residential drug treatment program, Club Soda, where he had been placed

as part of criminal proceedings in Vermillion County. On September 25, 2019,

the State filed a Notice of Probation Violation and petitioned to revoke Owens’s

probation.

[3] On March 25, 2020, the trial court conducted a hearing, at which Owens

testified and admitted to the alleged violations. He testified that he suffered

1 Ind. Code § 35-48-4-1.1(a)(2).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 2 of 4 from depression and anxiety, he was embarrassed to face his probation officer

because he had lost a job, and he had walked away from Club Soda because the

availability of drugs threatened his sobriety. The trial court found Owens in

violation of the terms of his probation and revoked his probation. Owens was

ordered to serve three years of his suspended sentence in the DOC. The trial

court recommended to the DOC that Owens be placed in a Purposeful

Incarceration program. Owens now appeals.

Discussion and Decision [4] Probation may be revoked where: (1) the person violated a condition of the

probation during the probationary period; and (2) the petition to revoke

probation was filed during the probationary period or before the earlier of one

year after termination of probation or forty-five days after the state receives

notification of the violation. See Ind. Code § 35-38-2-3(a). Owens admits that

he violated conditions of his probation. He does not challenge the timing of the

State’s petition to revoke; rather, he contends that the trial court abused its

discretion by ordering that he serve three years of his suspended sentence.

[5] Where the court finds a person has violated a condition of probation, the court

may: (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 year beyond the original probationary period; or (3) order the

execution of all or part of the sentence that was suspended at the time of initial

sentencing. See I.C. § 35-38-2-3(h). Trial courts enjoy broad discretion in

Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 3 of 4 adjudicating a probation violation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007). We review that decision only for an abuse of discretion, which occurs

when the decision is clearly against the logic and effect of the facts and

circumstances. Id. It is well within the trial court’s discretion to determine the

conditions of probation and revoke it if the conditions are violated. Id. When a

trial court exercises its grace by ordering probation rather than incarceration,

the judge has considerable leeway in deciding how to proceed. Id.

[6] Owens violated conditions of his probation soon after it began by failing to

attend his meeting with his probation officer and failing to report a change of

residence. He has seven prior felony convictions and fifteen misdemeanor

convictions. He has a history of violating the conditions of probation and home

detention. The trial court commented that Owens had been in his court

“almost seven straight years” without successful rehabilitation or compliance

with incarceration alternatives. (Tr. at 24.) Owens has repeatedly

demonstrated his contempt for the grace bestowed upon him by the court. We

are not persuaded that the trial court’s decision was clearly against the logic and

effect of the facts and circumstances.

[7] Affirmed.

Vaidik, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 4 of 4