Roy Buford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 22A04-1610-CR-2377
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 8:17 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roy Buford, May 25, 2017 Appellant-Defendant, Court of Appeals Case No. 22A04-1610-CR-2377 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Richard G. Appellee-Plaintiff. Striegel, Senior Judge Trial Court Cause No. 22D03-0902-FB-335

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Roy Buford (Buford), appeals the trial court’s revocation

of his probation and the imposition of his previously suspended sentence.

[2] We affirm.

ISSUE [3] Buford presents one issue on appeal, which we restate as: Whether the trial

court abused its discretion by ordering Buford to serve his previously suspended

sentence after he violated the terms of his probation.

FACTS AND PROCEDURAL HISTORY [4] On February 17, 2009, in cause number 22D03-0902-FB-00335 (FB-00335), the

State charged Buford with armed robbery, a Class C felony; carjacking, a Class

B felony; and auto theft, a Class D felony. On May 6, 2009, Buford entered a

plea agreement with the State in which he pled guilty to the carjacking offense.

The State agreed to dismiss the remaining charges. On June 23, 2009, the trial

court accepted Bufford’s plea and sentenced him in accordance with his plea

agreement. Specifically, the trial court sentenced Buford to seventeen years in

the Department of Correction (DOC); with fourteen years executed and three

years suspended to supervised probation.

[5] Following his release from the DOC, on March 11, 2015, Buford was placed on

probation with the Floyd County Adult Probation Department. Buford

thereafter sought a transfer of his probation to Kentucky. In November 2014,

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 2 of 6 Buford failed to abide by the other terms of his probation, including failure to

maintain good behavior; notify the probation department of his address; report

to probation; and pay fees. On November 26, 2014, the Floyd County

probation department filed a probation violation. On December 8, 2014, the

State filed a petition to revoke Buford’s probation. On December 19, 2014, the

trial court revoked 142 days of Buford’s suspended sentence and converted it

into jail time. As a result, Buford was left with 938 days suspended to

probation.

[6] On November 18, 2015, the Floyd County probation department filed another

probation violation against Buford, alleging that he had committed new

criminal offenses in Kentucky in cause number 15-F-011066, specifically,

wanton endangerment in the first degree and assault in the fourth degree. On

December 9, 2015, the Floyd County probation department amended the notice

of probation violation adding other probation violations based on Buford’s

additional offenses in two unrelated cause numbers. In cause number 15-F-

012089, Buford was charged with resisting law enforcement, and in cause

number 15-F-018899, he had pled guilty to “Attempted Tampering with a

Witness.” (Tr. p. 7). On January 27, 2016, the State filed a petition to revoke

Buford’s probation based on the offenses committed in Kentucky.

[7] On May 2, 2016, the Floyd probation department filed an amended notice of

probation violation, indicating that Buford had pled guilty to the offenses in

cause number 15-F-011066, i.e., wanton endangerment in the first degree and

assault in the fourth degree; and to the resisting law enforcement offense in

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 3 of 6 cause number 15-F-012089. On May 20, 2016, the State correspondingly filed

an amended petition to revoke probation. On September 16, 2016, the trial

court held a revocation hearing. At the close of the hearing, the trial court

found that Buford had violated his probation, and ordered him to serve 938

days of his suspended sentence in the DOC.

[8] Buford now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [9] On appeal, Buford challenges the revocation of his probation. “‘Probation is a

matter of grace left to trial court discretion, not a right to which a criminal

defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)

(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Accordingly, the

trial court has discretion to set the conditions of probation and to revoke

probation if those conditions are violated. Id. On appeal following a trial

court’s determination of a probation violation and imposition of sanctions, we

review for an abuse of discretion. Id. It is an abuse of discretion if the trial

court’s “decision is clearly against the logic and effect of the facts and

circumstances, or when the trial court misinterprets the law.” Id. (internal

citation omitted).

[10] Here, the trial court did not abuse its discretion when it imposed 938 days of

Buford’s suspended sentence. After the State filed its initial petition to revoke

Buford’s probation in 2014 based on his failure to report to probation and notify

the department of the change of his address, the trial court revoked only 142

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 4 of 6 days of his suspended sentence. Buford was ordered to resume probation upon

his release from jail. At that time, the trial court showed leniency by not

imposing the balance of his previously suspended sentence. In 2015, while on

probation, Buford committed and pleaded guilty to all four of the new offenses

in Kentucky.

[11] Buford argues that the new offenses committed in Kentucky, were “not

particularly weighty,” and the trial court abused its discretion for imposing the

balance of his suspended sentence. (Appellant’s Br. p. 11). Notwithstanding

Buford’s assertion, we note that violation of a single condition of probation is

sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.

1999). As a condition of his probation, Buford was ordered not to commit a

new offense. Instead of abiding by this term, Buford committed not one, but

several criminal offenses in Kentucky. In addition to violating his probation by

committing new criminal offenses, Buford failed to abide by the other terms of

his probation, including failure to maintain good behavior; report to probation;

and pay fees.

[12] Here, the facts demonstrate Buford’s disregard for court orders and the

probation system. As such, we conclude that the trial court was within its

discretion in to determine that Buford was not a good candidate for probation

and revoking his 938-day suspended sentence in the entirety. Accordingly, we

affirm the trial court’s order revoking Buford’s probation.

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 5 of 6 CONCLUSION [13] Based on the foregoing, we conclude that the trial court did not abuse its

discretion in revoking Buford’s probation and imposing the balance of his

previously suspended sentence.

[14] Affirmed.

[15] Najam, J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 22A04-1610-CR-2377 | May 25, 2017 Page 6 of 6