Micah Ormsby v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 26, 2016
• Docket: 27A02-1511-CR-1965
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 26 2016, 6:16 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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 Evan K. Hammond Gregory F. Zoeller Grant County Public Defender Attorney General of Indiana Marion, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Micah Ormsby, August 26, 2016 Appellant-Defendant, Court of Appeals Cause No. 27A02-1511-CR-1965 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1209-FD-209

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1965 | August 26, 2016 Page 1 of 5 Case Summary [1] Micah Ormsby appeals the trial court’s decision revoking his probation

following his admission that he violated his probation. We dismiss.

Issue [2] Ormsby raises one issue, which we restate as whether the trial court abused its

discretion by revoking Ormsby’s probation based on Ormsby’s admission that

he violated his probation because of new criminal charges being filed against

him in Florida.

Facts [3] On April 12, 2013, pursuant to a written plea agreement, Ormsby pled guilty in

Grant County to Class D felony domestic battery in the presence of a child.

Ormsby was sentenced to three years with 180 days executed and the remainder

suspended to supervised probation.

[4] On August 12, 2013, the State filed a petition to revoke Ormsby’s probation,

alleging that he had violated the terms and conditions of his probation by

committing a new crime of Class A misdemeanor false informing and by

violating his curfew. On December 31, 2013, the State filed an amended

petition to revoke probation. On July 22, 2014, Ormsby admitted to violating

the conditions of his probation. The trial court ordered Ormsby to serve six

months of his previously-suspended sentence and, upon completion of this

term, ordered him to return to probation.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1965 | August 26, 2016 Page 2 of 5 [5] On August 18, 2015, the State filed a second Petition for Revocation of

Probation alleging that, while on probation, Ormsby committed and was

charged with the crimes of burglary of a conveyance and grand theft in Florida.

On October 19, 2015, Ormsby admitted to violating his probation. Based on

Ormsby’s admission, the trial court revoked Ormsby’s probation and ordered

him to serve the remainder of his previously-suspended sentence in the Grant

County Jail. Ormsby now appeals.

Analysis [6] Ormsby argues that the trial court abused its discretion when it revoked his

probation and ordered him to serve the remainder of his previously-suspended

sentence. “Probation is a matter of grace left to trial court discretion, not a right

to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188

(Ind. 2007). “The trial court determines the conditions of probation and may

revoke probation if the conditions are violated.” Id.

[7] Proof of a single violation of the conditions of a defendant’s probation is

sufficient to support a trial court’s decision to revoke probation. Hubbard v.

State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). Upon a finding of a probation

violation, a trial 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; and (3) order execution of all or part of the sentence that

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

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1965 | August 26, 2016 Page 3 of 5 there is substantial evidence of probative value to support the trial court’s

conclusion that a probationer has violated any condition of probation, we will

affirm its decision to revoke probation.” Braxton v. State, 651 N.E.2d 268, 270

(Ind. 1995).

[8] We first address the State’s argument that Ormsby’s appeal should be dismissed

because the proper way to challenge the revocation of his probation is by a post-

conviction relief proceeding, and not a direct appeal, which Ormsby employs in

this case. “[Under] Indiana law an error premised upon a guilty plea must be

brought by a petition for post-conviction relief.” Huffman v. State, 822 N.E.2d

656, 660 (Ind. Ct. App. 2005). In Huffman, we dismissed an appeal challenging

a probation revocation after the defendant pled guilty to a violation. Id.

[9] Ormsby specifically contends that, although he admitted to violating the terms

of his probation based on new criminal charges being filed against him in

Florida, he did not admit that he committed those offenses. During Ormsby’s

hearing on a petition of revocation, Ormsby admitted twice to violating his

probation.

The Court: You’re going to admit that you violated the terms of your probation but you have no agreement as to the disposition or sentence. Is that right?

The Defendant: Yes your Honor.

Tr. p. 5

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1965 | August 26, 2016 Page 4 of 5 The Court: Okay. And, uh, you’re admitting that you have, in fact, violated the terms of your probation here today. Correct?

Id. at 9.

[10] As in Huffman, Ormsby admitted to violating his probation and cannot

challenge the revocation on direct appeal. This issue is more properly presented

by way of a petition for post-conviction relief.

Conclusion [11] Ormsby cannot challenge the revocation of his probation on direct appeal given

his admission that he violated his probation. We dismiss.

[12] Dismissed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1965 | August 26, 2016 Page 5 of 5