Michael D. Sample, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 27, 2019
• Docket: 19A-CR-1552
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 27 2019, 11:01 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael D. Sample, Sr., November 27, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1552 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Appellee-Plaintiff James D. Worton, Judge Trial Court Cause No. 03D01-1312-FA-6443

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019 Page 1 of 5 Case Summary [1] Michael D. Sample Sr. appeals the trial court’s order requiring him to serve all

his suspended time after he admitted violating his probation. We affirm.

Facts and Procedural History [2] In December 2013, the State charged Sample with Class A felony dealing in

methamphetamine and Class D felony maintaining a common nuisance. The

next year, Sample pled guilty to the reduced charge of Class B felony dealing in

methamphetamine, and the trial court sentenced him to sixteen years, with

twelve years to serve in the Department of Correction and four years suspended

to probation. In 2015, the trial court modified Sample’s sentence to six years to

serve with Community Corrections and ten years suspended to probation. In

early 2016 and again in early 2018, Sample was found to have violated the

terms of probation—the first time by using meth, the second time by failing to

report—but on both occasions the trial court ordered Sample to work release

instead of sending him back to the DOC.

[3] Then, in January 2019, the State filed its third petition to revoke Sample’s

probation, alleging that he had once again used meth. Sample admitted that

allegation, and the trial court ordered him to serve the remainder of his

sentence—nearly 9 years—in the DOC.

[4] Sample now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019 Page 2 of 5 Discussion and Decision [5] Sample contends that the trial court should not have ordered him to serve the

remainder of his sentence in the DOC. Trial courts enjoy broad discretion in

determining the appropriate sanction for a probation violation, and we review

only for an abuse of that discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007).

[6] Sample’s argument is very narrow. He asserts that the trial court “abused its

discretion in issuing its determination by not taking into consideration the

testimony [Sample] provided at the disposition hearing.” Appellant’s Br. p. 9.

He notes that he testified that: (1) “he had been contending with several

struggles in his relationships and recovery and was attempting to handle those

struggles (and avoid a relapse) the best he could given the circumstances”; (2)

he had a “tumultuous relationship with his live-in girlfriend, who is also an

addict,” and “filed a restraining order against her and insisted she move out”;

(3) he “went to the hospital for help and started going to church, with the goal

of providing his family a new kind of lifestyle, which would include God and

getting clean and sober”; (4) his girlfriend attempted suicide after he ended their

relationship; (5) he has made great progress in his work toward sobriety; (6) his

recent actions show “maturity and commitment” in his recovery; and (7) he

wants to serve as a caretaker for his ill mother and as a “stable presence” for his

mentally ill son. Id. at 9-10.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019 Page 3 of 5 [7] There are three problems with Sample’s argument. First, he doesn’t cite

anything to support his claim that the trial court did not take his testimony into

consideration. Second, even if we assume that the trial court did not take his

testimony into consideration, it was the trial court’s job to judge Sample’s

credibility, not ours. See Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). And

third, even if the trial court believed Sample’s testimony, his record in this

case—which he fails to even acknowledge in his argument—more than supports

the trial court’s decision to return him to the DOC for the remainder of his

sentence. The trial court displayed leniency when it suspended four years of

Sample’s original sentence to probation, despite Sample apparently having

multiple prior felony convictions. See Tr. p. 38. It did so again when it

significantly modified the sentence in late 2015, ordering that Sample be

immediately released from the DOC. Within a matter of months, however,

Sample violated his probation by using meth. The trial court could have sent

Sample back to the DOC then, but it did not, instead choosing to order him to

work release. Two years later, in early 2018, Sample was found to have

violated his probation a second time by failing to report. Again, the trial court

could have returned him to the DOC, but it allowed him to stay on work

release. Sample failed to take advantage of the court’s continued leniency and

once again violated his probation by using meth. As we see it, Sample has had

more than three years to try to get on track outside the DOC and has failed

badly. The trial court exercised great restraint during that time and was entirely

justified in finally sending Sample back to the DOC to serve out his sentence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019 Page 4 of 5 [8] Affirmed.

Najam, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019 Page 5 of 5