MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 24 2015, 10:06 am 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 Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert A. Olson, August 24, 2015 Appellant-Defendant, Court of Appeals Case No. 03A01-1504-CR-155 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Heimann, Judge Trial Court Cause No. 03C01-1010-FD-2276
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 1 of 7 Statement of the Case [1] Robert A. Olson (“Olson”) appeals the trial court’s order revoking his probation
and ordering him to serve his previously suspended eighteen-month sentence in
the Department of Correction. While on probation from a Class D felony
operating a vehicle while intoxicated (“OVWI”) conviction, Olson committed
another OVWI offense and then fled to Florida, where he committed yet
another OVWI offense. After the State extradited him back to Indiana, Olson
pled guilty to and was convicted of the Indiana OVWI offense, and he admitted
to violating probation. The trial court revoked Olson’s probation and ordered
him to serve his previously suspended sentence. Olson now appeals the trial
court’s imposition of his entire suspended sentence. Concluding that the trial
court did not abuse its discretion by ordering Olson—who had five OVWI
convictions—to serve his previously suspended sentence, we affirm the trial
court’s revocation of Olson’s probation.
[2] Affirmed.
Issue Whether the trial court abused its discretion by ordering Olson to serve his previously suspended sentence.
Facts [3] In March 2010, the State charged Olson with Class D felony OVWI. After
Olson failed to appear for his initial hearing, the trial court issued an arrest
warrant. In July 2010, Olson appeared for his initial hearing and was then
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 2 of 7 released by the trial court. Thereafter, Olson failed to appear at a scheduled
status hearing and pretrial hearing. The trial court again issued a warrant for
Olson’s arrest. In September 2010, the State served the warrant on Olson and
transported him from the Jennings County Jail.
[4] In February 2010, Olson pled guilty to the Class D felony OVWI as charged.
In March 2011, the trial court imposed a sentence of eighteen (18) months,
which was suspended to probation. The trial court also ordered Olson to serve
four (4) days in jail and placed him in Bartholomew County Community
Corrections for six (6) months. As part of Olson’s probation, he was to
complete thirty-two (32) hours of community service, participate in a substance
abuse program, refrain from consuming alcohol, and pay restitution and
extradition fees.
[5] Five months later, in August 2011, the State filed a notice of probation
violation, alleging that Olson had violated his probation by: (1) consuming
alcohol; (2) committing a new Class D felony OVWI offense in Bartholomew
County (“2011 OVWI case”) and failing to report it to the probation
department;1 (3) failing to complete recommended services; (4) failing to
complete required community service hours; and (5) being behind in paying his
fees. Upon learning of the revocation petition, Olson fled to Florida. When
1 This offense was filed under cause number 03C01-1108-FD-4604.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 3 of 7 Olson failed to appear at his September 2011 initial probation revocation
hearing, the trial court issued a warrant for his arrest.
[6] Three years later, in October 2014, the State located Olson after he was arrested
in Florida for yet another OVWI offense (“2014 Florida OVWI”).2 The State
then extradited him back to Indiana to appear for his revocation hearing and his
2011 OVWI case.
[7] In a joint hearing held on February 2, 2015, Olson pled guilty to the lesser
included offense of Class C misdemeanor in his 2011 OVWI case, and he
admitted to violating probation in this current case on appeal. 3 The trial court
determined that Olson “violate[d] the terms of his probation by consuming
alcohol in August 2011; committing Operating a Vehicle while Intoxicated, a
Class C Misdemeanor on August 20, 2011 and not completing the
recommended community service hours.” (App. 7).
[8] On March 26, 2015, the trial court held another joint hearing on the probation
revocation and the 2011 OVWI case. During this hearing, the trial court
revoked Olson’s probation and ordered him to serve the balance of his
previously suspended eighteen month sentence in the Department of
Correction. When doing so, the trial court explained its reasoning as follows:
2 According to Olson, he was convicted of the OVWI offense in Florida and given one year of probation. 3 Olson did not request the trial court reporter to transcribe this February 2015 hearing; thus, the transcript of this hearing is not before us as part of the record on appeal. As a result, any facts regarding this hearing will come from the chronological case summary (“CCS”).
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 4 of 7 “[W]e’ve had to extradite you twice on these cases. You absconded
immediately after violating your probation . . . [Y]ou’ve had five DUIs and
have had two since you have been on probation in this case.” (Tr. 32). For
Olson’s 2011 OVWI case, the trial court suspended his license and sentenced
him to sixty days with credit for time served. Olson now appeals from his
probation revocation case.
Decision [9] Olson argues that the trial court erred by ordering him to serve his previously
suspended sentence.
[10] Upon determining that a probationer has violated a condition of probation, the
trial court may “[o]rder execution of all or part of the sentence that was
suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).
“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.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “If this discretion
were not given to trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to future
defendants.” Id. As a result, we review a trial court’s sentencing decision from
a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825
N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 5 of 7 [11] Citing to Anglemyer v. State, 875 N.E.2d 482 (Ind. 2007), Olson suggests that the
trial court should have given “mitigating weight” to his admission that he
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 24 2015, 10:06 am 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 Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert A. Olson, August 24, 2015 Appellant-Defendant, Court of Appeals Case No. 03A01-1504-CR-155 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Heimann, Judge Trial Court Cause No. 03C01-1010-FD-2276
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 1 of 7 Statement of the Case [1] Robert A. Olson (“Olson”) appeals the trial court’s order revoking his probation
and ordering him to serve his previously suspended eighteen-month sentence in
the Department of Correction. While on probation from a Class D felony
operating a vehicle while intoxicated (“OVWI”) conviction, Olson committed
another OVWI offense and then fled to Florida, where he committed yet
another OVWI offense. After the State extradited him back to Indiana, Olson
pled guilty to and was convicted of the Indiana OVWI offense, and he admitted
to violating probation. The trial court revoked Olson’s probation and ordered
him to serve his previously suspended sentence. Olson now appeals the trial
court’s imposition of his entire suspended sentence. Concluding that the trial
court did not abuse its discretion by ordering Olson—who had five OVWI
convictions—to serve his previously suspended sentence, we affirm the trial
court’s revocation of Olson’s probation.
[2] Affirmed.
Issue Whether the trial court abused its discretion by ordering Olson to serve his previously suspended sentence.
Facts [3] In March 2010, the State charged Olson with Class D felony OVWI. After
Olson failed to appear for his initial hearing, the trial court issued an arrest
warrant. In July 2010, Olson appeared for his initial hearing and was then
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 2 of 7 released by the trial court. Thereafter, Olson failed to appear at a scheduled
status hearing and pretrial hearing. The trial court again issued a warrant for
Olson’s arrest. In September 2010, the State served the warrant on Olson and
transported him from the Jennings County Jail.
[4] In February 2010, Olson pled guilty to the Class D felony OVWI as charged.
In March 2011, the trial court imposed a sentence of eighteen (18) months,
which was suspended to probation. The trial court also ordered Olson to serve
four (4) days in jail and placed him in Bartholomew County Community
Corrections for six (6) months. As part of Olson’s probation, he was to
complete thirty-two (32) hours of community service, participate in a substance
abuse program, refrain from consuming alcohol, and pay restitution and
extradition fees.
[5] Five months later, in August 2011, the State filed a notice of probation
violation, alleging that Olson had violated his probation by: (1) consuming
alcohol; (2) committing a new Class D felony OVWI offense in Bartholomew
County (“2011 OVWI case”) and failing to report it to the probation
department;1 (3) failing to complete recommended services; (4) failing to
complete required community service hours; and (5) being behind in paying his
fees. Upon learning of the revocation petition, Olson fled to Florida. When
1 This offense was filed under cause number 03C01-1108-FD-4604.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 3 of 7 Olson failed to appear at his September 2011 initial probation revocation
hearing, the trial court issued a warrant for his arrest.
[6] Three years later, in October 2014, the State located Olson after he was arrested
in Florida for yet another OVWI offense (“2014 Florida OVWI”).2 The State
then extradited him back to Indiana to appear for his revocation hearing and his
2011 OVWI case.
[7] In a joint hearing held on February 2, 2015, Olson pled guilty to the lesser
included offense of Class C misdemeanor in his 2011 OVWI case, and he
admitted to violating probation in this current case on appeal. 3 The trial court
determined that Olson “violate[d] the terms of his probation by consuming
alcohol in August 2011; committing Operating a Vehicle while Intoxicated, a
Class C Misdemeanor on August 20, 2011 and not completing the
recommended community service hours.” (App. 7).
[8] On March 26, 2015, the trial court held another joint hearing on the probation
revocation and the 2011 OVWI case. During this hearing, the trial court
revoked Olson’s probation and ordered him to serve the balance of his
previously suspended eighteen month sentence in the Department of
Correction. When doing so, the trial court explained its reasoning as follows:
2 According to Olson, he was convicted of the OVWI offense in Florida and given one year of probation. 3 Olson did not request the trial court reporter to transcribe this February 2015 hearing; thus, the transcript of this hearing is not before us as part of the record on appeal. As a result, any facts regarding this hearing will come from the chronological case summary (“CCS”).
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 4 of 7 “[W]e’ve had to extradite you twice on these cases. You absconded
immediately after violating your probation . . . [Y]ou’ve had five DUIs and
have had two since you have been on probation in this case.” (Tr. 32). For
Olson’s 2011 OVWI case, the trial court suspended his license and sentenced
him to sixty days with credit for time served. Olson now appeals from his
probation revocation case.
Decision [9] Olson argues that the trial court erred by ordering him to serve his previously
suspended sentence.
[10] Upon determining that a probationer has violated a condition of probation, the
trial court may “[o]rder execution of all or part of the sentence that was
suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).
“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.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “If this discretion
were not given to trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to future
defendants.” Id. As a result, we review a trial court’s sentencing decision from
a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825
N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 5 of 7 [11] Citing to Anglemyer v. State, 875 N.E.2d 482 (Ind. 2007), Olson suggests that the
trial court should have given “mitigating weight” to his admission that he
violated the terms of his probation. (Olson’s Br. 4). “Anglemyer, however,
applies to the imposition of an initial sentence—not a sentence imposed
following the revocation of probation.” Berry v. State, 904 N.E.2d 365, 366
(Ind. Ct. App. 2009). Instead, here, the trial court ordered Olson to serve the
suspended balance of his already imposed sentence, which he cannot
collaterally attack. See id. (citing Stephens v. State, 818 N.E.2d 936, 939 (Ind.
2004) (observing that a defendant cannot collaterally attack a sentence on
appeal from a probation revocation)).4
[12] The record reveals that the trial court had ample basis for its decision to order
Olson to serve his previously suspended sentence in the Department of
Correction. Here, Olson’s violation of his probation was based, in part, on his
consumption of alcohol and the commission of the 2011 OVWI case in
Indiana, which is the same type of offense as the one for which he was placed
on probation. Indeed, during the final revocation hearing, the trial court
specifically told Olson its reasoning for ordering him to serve his suspended
sentence, which included the fact that Olson had five OVWI convictions and
4 We also reject Olson’s reliance on Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), as the facts of that case are distinguishable from this case. In Puckett, we held that a special judge in the defendant’s probation revocation hearing had “consider[ed] multiple improper factors” such as whether the original plea accepted by the original trial judge was too lenient. Puckett, 956 N.E.2d at 1189. Here, however, we have no such circumstances.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 6 of 7 had absconded to Florida after violating probation and avoided the revocation
allegations for three years.
[13] Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Olson to serve his previously suspended sentence. For
the foregoing reasons, we affirm the trial court’s revocation of Olson’s
probation.
[14] Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015 Page 7 of 7