Prewitt v. State

865 N.E.2d 669, 2007 Ind. App. LEXIS 864, 2007 WL 1240371

• Court: Indiana Court of Appeals
• Decided: April 30, 2007
• Docket: 10A04-0610-CR-589
• Status: Published

Opinions

OPINION

SHARPNACK, Judge.

Russell Prewitt appeals his sentence for violating his probation. Prewitt raises one issue, which we revise and restate as whether the trial court abused its discretion in sentencing him. We reverse and remand.

The relevant facts, as set forth in Prew-itt’s direct appeal, follow:

Late one evening, Prewitt and his brother’s fiancée, Charlotte Cooper, loaded Cooper’s van with steaks and cigarettes that they hoped to trade for drugs. They drove to the Greenwood Apartments, a public housing complex in Jeffersonville, Indiana. There, they saw a man standing in the doorway of an apartment. The man was an undercover police officer, Trooper Shaun Hannon. Cooper parked the van and Prewitt walked to the apartment and spoke to Hannon, asking if he could trade merchandise for crack cocaine. Hannon went into the apartment alone, and told Sergeant Myron Wilkerson and Detective Leslie Kavanaugh, who were inside, that a man was outside asking for cocaine. Wilkerson and Kavanaugh went to the door, where Prewitt indicated that he wanted to trade meat and cigarettes for cocaine. The two followed Prewitt back to the van, and when Cooper began showing them the merchandise, Kava-naugh identified himself and arrested both Cooper and Prewitt.

Prewitt was originally charged with conspiracy to possess cocaine, a Class C felony. The information was eventually amended to include two counts: one count of conspiracy to possess cocaine as a Class B felony for being within 1,000 feet of a family housing unit, and one count of attempted possession of cocaine as a Class B felony, also for being within 1,000 feet of a family housing unit. A jury found Prewitt guilty of both charges; however, the conspiracy verdict was later vacated by the trial court.

Prewitt v. State, 761 N.E.2d 862, 866 (Ind.Ct.App.2002). The trial court sentenced Prewitt to sixteen years with six years suspended to probation. The trial court’s sentencing order stated, “[a]s a specific term of probation, [Prewitt] shall upon being released from incarceration place himself in a Court approved halfway house for 90 days, and be subject to Intensive Probation as deemed necessary by the Probation Office at the time of his release.” Appellant’s Appendix at 136.

Prewitt began serving his probation in July 2005. On October 11, 2005, the State filed a petition to revoke probation alleging that Prewitt had failed to complete the halfway house program successfully. On November 21, 2005, the State and Prewitt reached an agreement in which Prewitt was sentenced to his time already served, ordered to successfully complete the halfway house program, and ordered to continue reporting to the probation department.

On November 28, 2005, the State filed a second petition to revoke Prewitt’s probation and alleged that Prewitt had violated the terms of his probation by committing public intoxication on September 18, 2005, criminal trespass on October 2, 2005, and failing to complete the halfway house program. On January 30, 2006, the trial court held an evidentiary hearing. At the hearing, Prewitt admitted a violation of probation,¹ and the trial court found that Prewitt violated the terms of his probation. The trial court ordered that Prewitt remain incarcerated until “such time as he is able to enter and complete a half-way house.” Appellant’s Appendix at 238.

On April 18, 2006, the director of Prew-itt’s halfway house sent Prewitt’s probation officer a letter that indicated that Prewitt had not complied with the halfway house program and had left the halfway house. The director of the halfway house told Prewitt that he was expected to stay ninety days, but Prewitt was at the halfway house for only sixty-seven days and failed to contact his probation officer to inform her that he had left the program. On April 24, 2006, the State filed a third petition to revoke probation and alleged that Prewitt had violated the terms of his probation by failing to successfully comply with the halfway house program. On May 16, 2006, Prewitt filed a motion for assessment for treatment and requested that he “receive treatment at Richmond, if appropriate, as part of the disposition....” Id. at 251. At the evidentiary hearing, Prew-itt admitted that he left the program early and failed to contact his probation officer to inform her that he had left the program. Prewitt’s attorney suggested that Prewitt be treated at Richmond State Hospital.

The trial court found that Prewitt violated his probation and ordered Prewitt to serve two years of his previously suspended sentence and that upon release Prewitt must enter Richmond State Hospital as a condition of probation.

The sole issue is whether the trial court abused its discretion when it sentenced Prewitt to serve two years of his previously suspended sentence and ordered that Prewitt enter Richmond State Hospital upon release as a condition of probation. We review a trial court’s sentencing decision in probation revocation proceedings for an abuse of discretion.² Goonen v. State, 705 N.E.2d 209, 212 (Ind.Ct.App.1999). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000), reh’g denied.

Ind.Code § 35-38-2-3(g), which gives a trial court sentencing options if the trial court finds a probation violation, provides: We have held that “so long as the proper procedures have been followed in conducting a probation revocation hearing pursuant to Indiana Code Section 35-38-2-3, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Goonen, 705 N.E.2d at 212. The “[consideration and imposition of any alternatives to incarceration is a ‘matter of grace’ left to the discretion of the trial court.” Monday v. State, 671 N.E.2d 467, 469 (Ind.Ct.App.1996).

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:

(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; or

(3) order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Prewitt argues that the trial court abused its discretion by executing two years of Prewitt’s sentence and modifying his terms of probation by directing him to also complete a treatment program at Richmond State Hospital. Prewitt argues that the trial court’s order violates Ind. Code § 35 — 38—2—3(g) because the trial court “did not have authority to both execute a portion of his previously suspended sentence and modify the terms of his probation.” Appellant’s Brief at 11.

We find Sharp v. State, 817 N.E.2d 644 (Ind.Ct.App.2004), instructive. In Sharp, the trial court found that the defendant had violated several conditions of his probation. 817 N.E.2d at 646. The trial court modified the defendant’s probation by extending his period of probation and requiring the defendant to serve time in the Indiana Department of Correction as a term of probation. Id. On appeal, the defendant argued that the trial court exceeded its authority under Ind.Code § 35-38 — 2—3(g). Id. The defendant argued that subsections (g)(1), (g)(2), and (g)(3) are connected by “or” and the trial court “only has the discretion to apply one (1) of the three (3) alternatives.” Id. at 647. The defendant argued that the trial court could not both modify the conditions of probation under subsection (g)(1) and extend his probationary period under subsection (g)(2). Id. We held:

“The words ‘and’ and ‘or’ as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature respectively, and their ordinary meaning should be followed if it does not render the sense of the statute dubious.” Barr v. Sun Exploration Co., Inc., 436 N.E.2d 821, 824-825 (Ind.Ct.App.1982). The ordinary meaning of “or” in Ind. Code § 35-38-2-3(g) is disjunctive and, thus, the statute gives the trial court the authority to do one of the following: (1) continue the probation with or without modifications; (2) extend the probationary period; or (3) order the execution of the suspended sentence. Here, the trial court both continued Sharp’s probation with modifications under subsection (g)(1) and also extended the probationary period under (g)(2). The trial court only had the statutory authority to do one of the three options in Ind.Code § 35-38-2-3[ (g) ], not two of the options. Consequently, the trial court exceeded its statutory authority, and we must reverse and remand for resentenc-ing.

Id.

Here, the trial court ordered execution of part of the sentence that was suspended at the time of initial sentencing under subsection (g)(3) and modified Prewitt’s conditions of probation under (g)(1) by ordering Prewitt to enter Richmond State Hospital upon his release. Because the trial court only had the statutory authority to do one of the three options in Ind.Code § 35-38-2-3(g), not two of the options, we remand for resentencing.³

For the foregoing reasons, we reverse and remand for resentencing.

Reversed and remanded.

SULLIVAN, J., concurs. CRONE, J., concurs with separate concurring opinion.

1 . The record does not reveal which term Prewitt admitted that he had violated.

2 . Prewitt argues that "[ajlthough this standard of review is well established, Prewitt would suggest that this Court apply the standard of review set forth by Indiana Appellate Rule 7(B)." Appellant's Brief at 7. Prewitt argues that the language in Stephens v. State, 818 N.E.2d 936 (Ind.2004), "would seem to suggest that Court may have used [Ind. Appellate Rule 7(B) ] when reviewing the sentence imposed after the revocation of Stephens’ probation.” Id. at 8. Prewitt acknowledges our holding in Sanders v. State, 825 N.E.2d 952, 957 (Ind.Ct.App.2005), trans. denied, in which we addressed this argument. In Sanders, we held:

It is not clear from our supreme court’s decision [in Stephens ] what standard of review it used when reviewing whether the defendant's probation revocation sentence was unreasonable. Although some of the language used suggests that it may have used Ind. Appellate Rule 7(B), we believe— given our existing caselaw regarding appellate review of a trial court’s probation decisions and regarding the prohibition against collaterally attacking an original sentence following revocation of probation — that the standard of review used when reviewing whether a defendant’s probation revocation sentence is unreasonable is an abuse of discretion. Therefore, we will review Sanders’s sentence on revocation for an abuse of discretion.

As we held in Sanders, we will review Prew-itt’s sentence on revocation for an abuse of discretion.

3 . The State argues that any error is invited error. The State directs our attention to Prewitt’s motion and his counsel’s comments. Prewitt filed a motion for assessment for treatment and requested that he "receive treatment at Richmond, if appropriate, as part of the disposition....” Appellant's Appendix at 251. At the probation revocation hearing, Prewitt’s counsel stated, "And I would suggest that if we can arrange something I do think Richmond somehow slipped through the cracks and it might not be a bad idea. And he’s also just asked me if the Court would consider this because I still think he does have ties in Indianapolis.” Transcript at 29. The State concedes that Prewitt "admittedly wanted the court to do this instead of requiring [him] to serve any more time in jail than the time served pending the hear-ing_” Appellee’s Brief at 8. We cannot say that Prewitt invited this error because Prewitt did not argue that the trial court should sentence him to serve his unexecuted sentence and send him to the Richmond State Hospital.