MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral FILED estoppel, or the law of the case. Jun 17 2020, 10:16 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brandon E. Murphy Tina L. Mann Cannon Burns & Murphy, LLC Deputy Attorney General Muncie, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard N. Smith, Jr., June 17, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-199 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Kimberly S. Appellee-Plaintiff. Dowling, Judge Trial Court Cause No. 18C02-1308-FA-13
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 1 of 7 Case Summary [1] After being convicted of Class A felony dealing in cocaine, Richard Smith, Jr.
was sentenced to a twenty-year term of incarceration in the Department of
Correction (“DOC”). Smith was placed in an intensive therapeutic program
while incarcerated and, upon his successful completion of the program, was
granted a sentence modification. The trial court released Smith from
incarceration, suspended the remaining twelve years and one hundred two days
of his sentence, and placed Smith on probation. Despite receiving this leniency
from the trial court, Smith violated the terms of his probation within months of
being released and placed on probation. The trial court subsequently revoked
Smith’s probation and ordered that he serve the entire suspended sentence in
the DOC. Smith contends that the trial court abused its discretion in revoking
his entire suspended sentence. We affirm.
Facts and Procedural History [2] On August 6, 2013, Smith was charged with two counts of Class A felony
dealing in cocaine, Class A felony possession of cocaine, Class D felony
maintaining a common nuisance, and Class A misdemeanor possession of
marijuana. On April 21, 2016, as part of a negotiated plea agreement, Smith
pled guilty to one count of Class A felony dealing in cocaine and agreed to a
twenty-year fixed sentence. In exchange for Smith’s guilty plea, the State
agreed to dismiss all other charges. The parties agreed that Smith was “an
appropriate candidate for Purposeful Incarceration through the [DOC’s]
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 2 of 7 Therapeutic Community Program for severe substance abuse issues” and that
“if Court accepts this Plea Agreement, the Court shall recommend that the
[DOC] place [Smith] in this program.” Appellant’s App. Vol. II p. 149. The
trial court accepted the plea agreement and sentenced Smith in accordance with
its terms.
[3] Smith successfully completed the intensive therapeutic program, and on June 8,
2017, the trial court modified Smith’s sentence, ordering as follows:
Therefore, as to Count 1, Dealing in Cocaine, a Class A felony, the remainder of [Smith’s] twenty (20) year executed sentence shall be suspended and [Smith] shall be placed on supervised probation for a period of twelve (12) years and one hundred two (102) days.… Further, if [Smith] successfully completes three (3) years of the supervised probation, the Probation Department may file a petition requesting [Smith] be released from probation.
Appellant’s App. Vol. II p. 204.
[4] On December 14, 2017, the State filed a petition to revoke Smith’s probation
after Smith was charged with five new criminal offenses: two counts of Level 4
felony dealing in narcotic drug, Level 6 felony maintaining a common
nuisance, and two counts of Level 6 felony resisting law enforcement. After
pleading guilty to one count of Level 6 felony resisting law enforcement in his
new case, Smith admitted to the probation violation in this case. The trial court
revoked Smith’s probation and ordered that he serve the entirety of his
previously-suspended sentence in the DOC.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 3 of 7 Discussion and Decision [5] “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. 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.
Id. (internal citations omitted). In challenging the revocation of his probation,
Smith contends that the trial court abused its discretion in revoking his entire
suspended sentence. Specifically, he argues that the sanction imposed for his
violation “was unduly harsh and should be revised in light of [Smith’s] ability
to make use of drug treatment and rehabilitation.” Appellant’s Br. p. 8.
[6] In the underlying criminal case, Smith was convicted of Class A felony dealing
in cocaine and sentenced to twenty years. After Smith successfully completed
an intensive therapeutic program aimed at addressing his substance-abuse
issues, Smith was given a chance to show that he was rehabilitated and could
live a crime-free life in the community. However, within months, Smith
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 4 of 7 violated the terms of his probation. After Smith admitted to violating the terms
of his probation, the trial court revoked Smith’s entire suspended sentence. In
doing so, the trial court stated the following:
Mr. Smith, I did tell you at the time that I modified your sentence that that was your one chance. And when I, when you got sentenced on the twenty (20) year sentence with therapeutic community, that was the biggest break of your life. I mean that’s handing that to you on a silver platter. And you did therapeutic community and then you blew it.… I mean, you know, the second biggest chance of your life is when then I modify your sentence and you don’t have to do twenty (20) years in prison. You have to obey the law. You have to follow the rules of probation. And you have to take advantage of what you learned while you were in therapeutic community. And you didn’t do that. And so from my perceptive, [the State] is right that you earned the revocation.
Tr. Vol. II p. 11.
[7] In arguing that imposing his entire suspended sentence was unduly harsh,
Smith claims that “participation in that program and his successful completion
of that program show that he is capable of defeating his drug addiction and
living a law-abiding life.” Appellant’s Br. p. 9. However, Smith’s alleged
participation in drug-related criminal behavior within months of having his
sentence modified and being placed on probation suggests otherwise. We agree
with the State that Smith’s actions once being placed on probation indicate that
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral FILED estoppel, or the law of the case. Jun 17 2020, 10:16 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brandon E. Murphy Tina L. Mann Cannon Burns & Murphy, LLC Deputy Attorney General Muncie, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard N. Smith, Jr., June 17, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-199 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Kimberly S. Appellee-Plaintiff. Dowling, Judge Trial Court Cause No. 18C02-1308-FA-13
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 1 of 7 Case Summary [1] After being convicted of Class A felony dealing in cocaine, Richard Smith, Jr.
was sentenced to a twenty-year term of incarceration in the Department of
Correction (“DOC”). Smith was placed in an intensive therapeutic program
while incarcerated and, upon his successful completion of the program, was
granted a sentence modification. The trial court released Smith from
incarceration, suspended the remaining twelve years and one hundred two days
of his sentence, and placed Smith on probation. Despite receiving this leniency
from the trial court, Smith violated the terms of his probation within months of
being released and placed on probation. The trial court subsequently revoked
Smith’s probation and ordered that he serve the entire suspended sentence in
the DOC. Smith contends that the trial court abused its discretion in revoking
his entire suspended sentence. We affirm.
Facts and Procedural History [2] On August 6, 2013, Smith was charged with two counts of Class A felony
dealing in cocaine, Class A felony possession of cocaine, Class D felony
maintaining a common nuisance, and Class A misdemeanor possession of
marijuana. On April 21, 2016, as part of a negotiated plea agreement, Smith
pled guilty to one count of Class A felony dealing in cocaine and agreed to a
twenty-year fixed sentence. In exchange for Smith’s guilty plea, the State
agreed to dismiss all other charges. The parties agreed that Smith was “an
appropriate candidate for Purposeful Incarceration through the [DOC’s]
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 2 of 7 Therapeutic Community Program for severe substance abuse issues” and that
“if Court accepts this Plea Agreement, the Court shall recommend that the
[DOC] place [Smith] in this program.” Appellant’s App. Vol. II p. 149. The
trial court accepted the plea agreement and sentenced Smith in accordance with
its terms.
[3] Smith successfully completed the intensive therapeutic program, and on June 8,
2017, the trial court modified Smith’s sentence, ordering as follows:
Therefore, as to Count 1, Dealing in Cocaine, a Class A felony, the remainder of [Smith’s] twenty (20) year executed sentence shall be suspended and [Smith] shall be placed on supervised probation for a period of twelve (12) years and one hundred two (102) days.… Further, if [Smith] successfully completes three (3) years of the supervised probation, the Probation Department may file a petition requesting [Smith] be released from probation.
Appellant’s App. Vol. II p. 204.
[4] On December 14, 2017, the State filed a petition to revoke Smith’s probation
after Smith was charged with five new criminal offenses: two counts of Level 4
felony dealing in narcotic drug, Level 6 felony maintaining a common
nuisance, and two counts of Level 6 felony resisting law enforcement. After
pleading guilty to one count of Level 6 felony resisting law enforcement in his
new case, Smith admitted to the probation violation in this case. The trial court
revoked Smith’s probation and ordered that he serve the entirety of his
previously-suspended sentence in the DOC.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 3 of 7 Discussion and Decision [5] “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. 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.
Id. (internal citations omitted). In challenging the revocation of his probation,
Smith contends that the trial court abused its discretion in revoking his entire
suspended sentence. Specifically, he argues that the sanction imposed for his
violation “was unduly harsh and should be revised in light of [Smith’s] ability
to make use of drug treatment and rehabilitation.” Appellant’s Br. p. 8.
[6] In the underlying criminal case, Smith was convicted of Class A felony dealing
in cocaine and sentenced to twenty years. After Smith successfully completed
an intensive therapeutic program aimed at addressing his substance-abuse
issues, Smith was given a chance to show that he was rehabilitated and could
live a crime-free life in the community. However, within months, Smith
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 4 of 7 violated the terms of his probation. After Smith admitted to violating the terms
of his probation, the trial court revoked Smith’s entire suspended sentence. In
doing so, the trial court stated the following:
Mr. Smith, I did tell you at the time that I modified your sentence that that was your one chance. And when I, when you got sentenced on the twenty (20) year sentence with therapeutic community, that was the biggest break of your life. I mean that’s handing that to you on a silver platter. And you did therapeutic community and then you blew it.… I mean, you know, the second biggest chance of your life is when then I modify your sentence and you don’t have to do twenty (20) years in prison. You have to obey the law. You have to follow the rules of probation. And you have to take advantage of what you learned while you were in therapeutic community. And you didn’t do that. And so from my perceptive, [the State] is right that you earned the revocation.
Tr. Vol. II p. 11.
[7] In arguing that imposing his entire suspended sentence was unduly harsh,
Smith claims that “participation in that program and his successful completion
of that program show that he is capable of defeating his drug addiction and
living a law-abiding life.” Appellant’s Br. p. 9. However, Smith’s alleged
participation in drug-related criminal behavior within months of having his
sentence modified and being placed on probation suggests otherwise. We agree
with the State that Smith’s actions once being placed on probation indicate that
his successful completion of the therapeutic program “wholly failed to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 5 of 7 rehabilitate” him and “his own conduct demonstrated that it had not made him
capable of living a law-abiding life.”1 Appellee’s Br. p. 11.
[8] Smith also claims that the trial court should have recognized his “prior
demonstrated ability to comply with the recommendations of the court in
imposing an appropriate sanction.” Appellant’s Br. p. 10. Contrary to this
claim, Smith has not demonstrated an ability to comply with court orders or
recommendations and he has failed to modify his behavior after receiving prior
awards of leniency. Smith has an extensive criminal history dating back to
1994, which includes seven prior felony convictions and three prior
misdemeanor convictions. In addition, prior to being placed on probation in
this case, Smith had been placed on probation five times and had had his
probation violated in four of those five cases. We agree with the State that
“committing crimes while on probation after only six months of participation is
not a demonstration of [Smith’s] ability to comply with the recommendations
of the court, which would have included the rules and conditions of probation.”
Appellee’s Br. p. 11. Smith’s behavior indicates that he is either not capable of
or interested in living a law-abiding life. Rather, his behavior demonstrates a
disregard for the laws of this state and the restrictions placed on him by the trial
court.
1 Furthermore, to the extent that Smith claims that the trial court abused its discretion by relying on his successful participation in and completion of the therapeutic program as a reason to revoke the remainder of his suspended sentence, the record reveals that the trial court did not do so. The trial court merely noted that Smith had failed to take advantage of the tools learned during his participation in the therapeutic program.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 6 of 7 [9] The record reveals that Smith was granted an opportunity to serve the majority
of his twenty-year sentence on probation after completing an intensive
therapeutic program. By his own choice, Smith did not take advantage of this
opportunity. As such, despite Smith’s contention to the contrary, we conclude
that the trial court did not abuse its discretion in revoking the remainder of
Smith’s suspended sentence.
[10] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020 Page 7 of 7