Robert A. Peterson, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 30, 2017
• Docket: 16A04-1706-CR-1335
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 30 2017, 10:52 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana

Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert A. Peterson, Jr., October 30, 2017 Appellant-Defendant, Court of Appeals Case No. 16A04-1706-CR-1335 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew D. Appellee-Plaintiff. Bailey, Judge Trial Court Cause No. 16D01-1203-FA-207

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017 Page 1 of 6 Statement of the Case [1] Robert A. Peterson, Jr. appeals the trial court’s revocation of his probation. He

raises one issue on appeal, namely, whether the trial court abused its discretion

when it ordered him to serve the balance of his previously suspended sentence.

We affirm.

Facts and Procedural History [2] On March 22, 2012, the State charged Peterson with dealing in

methamphetamine, as a Class A felony; possession of methamphetamine, as a

Class B felony; possession of precursors, as a Class C felony; possession of a

controlled substance, as a Class C felony; and resisting law enforcement, as a

Class A misdemeanor. Peterson pleaded guilty to dealing in

methamphetamine, as a Class B felony, and the State dismissed the remaining

charges. The trial court sentenced Peterson to twelve years with six years

suspended to probation.

[3] On January 27, 2017, after Peterson had served two years of his probation, the

State filed a petition to revoke his probation because it had charged Peterson in

Cause No. 16D01-1701-F4-69 (“F4-69”) with unlawful possession of a firearm

by a serious violent felon, a Level 4 felony; criminal recklessness, as a Level 6

felony; and criminal mischief, as a Class A misdemeanor. On April 27,

following a jury trial, a trial court entered judgment of conviction on the two

felony counts in F4-69. At the ensuing probation revocation hearing in the

instant cause on May 18, the trial court found that Peterson had violated the

Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017 Page 2 of 6 terms of his probation, and the court ordered Peterson to serve the balance of

his suspended sentence, six years, in the Department of Correction. This

appeal ensued.

Discussion and Decision [4] Peterson argues that the trial court abused its discretion when, after revoking his

probation, it ordered him to serve his entire 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); see also Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied.

We review probation violation determinations and sanctions for an abuse of

discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of

discretion occurs where the decision is clearly against the logic and effect of the

facts and circumstances, or when the trial court misinterprets the law.” Id.

(citations omitted).

[5] Probation revocation is a two-step process. First, the trial court must make a

factual determination that a violation of a condition of probation actually

occurred. Id. Second, if a violation is found, then the trial court must

determine the appropriate sanctions for the violation. Id. Indiana Code Section

35-38-2-3(h) (2017) provides:

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 impose one (1) or more of the following sanctions:

Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017 Page 3 of 6 (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.

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

Our Supreme Court has held that this statute “permits judges to sentence

offenders using any one of or any combination of the enumerated powers.”

Prewitt, 878 N.E.2d at 187. A single violation of a condition of probation is

sufficient to permit the trial court to revoke probation. Treece, 10 N.E.3d at 59.

[6] Here, Peterson does not dispute that the trial court had authority to sanction

him pursuant to Indiana Code Section 35-38-2-3(h) given his convictions on

two felony counts in F4-69 while on probation. Rather, Peterson maintains

that the trial court abused its discretion when it failed to take into account the

following alleged mitigating factors in imposing sanctions: his twenty-eight-

year sentence for the two felony convictions in F4-69; his successful completion

of a community transition program; and his successful completion of two years

of his probation.

[7] While probationers must be given the opportunity to present mitigating factors,

Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), “trial courts are not required to

balance aggravating or mitigating circumstances when imposing [a] sentence in

a probation revocation proceeding,” Treece, 10 N.E.3d at 59 (quotation

Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017 Page 4 of 6 omitted). This stems from the fact that a probation revocation hearing does not

involve the imposition of a sentence, but is a proceeding to consider the

execution of a sentence already imposed. See Mitchell v. State, 619 N.E.2d 961,

963-64 (Ind. Ct. App. 1993), overruled on other grounds by Patterson v. State, 659

N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995). So long as the proper procedures

have been followed in conducting a probation revocation, a trial court has

discretion to order execution of a suspended sentence upon a finding of a

violation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

Therefore, we cannot say that the trial court abused its discretion when it

refused to give weight to the mitigating factors Peterson raised.

[8] The logic and effect of the facts and circumstances in this case support the trial

court’s sanction for Peterson’s probation violation. At the time of the

revocation hearing, Peterson’s criminal history included five felonies and five

misdemeanors. And Peterson’s probation violation was significant: Peterson

discharged a firearm “toward a vehicle” in a mobile home park where other

people were present. Appellant’s App. Vol. 2 at 76. The trial court was well

within its discretion to order Peterson to serve his entire previously suspended

sentence. See Prewitt, 878 N.E.2d at 188 (holding trial court did not abuse its

discretion in ordering defendant to serve previously suspended sentence when

he had multiple probation violations, a past criminal history, and an inability to

comply with ordered programs).

[9] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017 Page 5 of 6 Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision16A04-1706-CR-1335 | October 30, 2017 Page 6 of 6