MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 11 2015, 9:39 am 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 estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weismann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shaun Combs, December 11, 2015 Appellant-Defendant, Court of Appeals Case No. 15A01-1505-CR-431 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-0102-FC-003
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 1 of 7 Statement of the Case [1] Shaun Combs (“Combs”) appeals the trial court’s order revoking his probation
and ordering him to serve three years of his previously suspended ten-year
sentence in the Department of Correction following his admission that he tested
positive for opiates. On appeal, Combs argues that the trial court should have
ordered him to serve only one year of his suspended sentence. Concluding that
the trial court did not abuse its discretion by ordering Combs to serve three
years of his previously suspended sentence, we affirm the trial court’s
revocation of Combs’s probation.
[2] Affirmed.
Issue Whether the trial court abused its discretion by ordering Combs to serve part of his previously suspended sentence.
Facts [3] In February 2001, the State charged Combs with: Count I, Class B felony
conspiracy to commit burglary; Count II, Class B felony burglary; and Count
III, Class D felony theft.1 In September 2001, pursuant to a written plea
agreement, Combs pled guilty to the Class B felony burglary charge in Count II
in exchange for the State’s dismissal of the remaining two charges. As part of
1 The State charged Combs in a joint charging information with other co-defendants. This charging information also contained a Count IV and Count V, which were not charged against Combs.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 2 of 7 the plea agreement, the parties agreed that Combs would be sentenced to
twenty (20) years with ten (10) years executed in the Department of Correction
and ten (10) years suspended to probation. Thereafter, the trial court accepted
Combs’s plea and sentenced him pursuant to the plea agreement.
[4] In January 2009, the State filed a notice of probation violation, alleging that
Combs had violated his probation by testing positive for marijuana. In
February 2009, Combs and the State entered into a negotiated agreement, in
which Combs agreed to admit to the probation violation allegation in exchange
for his participation in the Adult Drug Court Program and the deferral on any
order on the probation violation petition. The trial court accepted the parties’
negotiated agreement, and Combs later completed the drug court program.
[5] In May 2011, the State filed a second notice of probation violation, alleging that
Combs had violated his probation by being charged with Class A misdemeanor
domestic battery. Following a hearing, the trial court found that Combs did not
violate the terms of his probation.
[6] On February 5, 2015, the State filed a third notice of probation violation,
alleging that Combs had violated his probation by testing positive for opiates—
specifically, morphine—during a urine drug screen conducted in January 2015.
The trial court delayed the probation revocation hearing so that Combs could
participate in the jail’s JCAP Program. However, Combs was subsequently
removed from the program due to difficulties with participation.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 3 of 7 [7] On April 23, 2015, the trial court held a probation revocation hearing, during
which Combs admitted that he had violated his probation as alleged. He also
admitted that, during the month prior to his drug screen, he had been using
heroin two to four times per week. Combs, who was thirty-five years old at the
time of the hearing, testified that he “started using drugs at a young age” and
that his drug use “progressed over the years.” (Tr. 34). He asserted that his
substance abuse issues had led to the commission of his underlying burglary
conviction and were related to his juvenile history and criminal history. Combs
testified that he had relapsed because he was “[p]utting [him]self in the wrong
areas with the wrong people.” (Tr. 28).
[8] At the end of the hearing, the trial court determined that Combs had violated
his probation and ordered him to serve three (3) years of his previously
suspended sentence.2 When doing so, the trial court explained its reasoning as
follows:
[T]he underlying offense was a residential burglary of [a] home . . . . Mr. Combs plead[ed] guilty and received a sentence of twenty years with ten years suspended. So he served five years at the Indiana Department of Corrections followed by ten years of felony probation. When he was released onto felony probation[,] there was a positive test for a drug screen. This Court allowed him to go into drug court and without going through the entirety of drug court[,] it consist[ed] of individual counseling, group counseling, going to NA meetings, appearing before the Court at
2 The trial court ordered that Combs’s probation would be terminated upon completion of this suspended sentence.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 4 of 7 least once a week in the early stages and then end[ed] with once a month in the final six months and then regular appointments with probation. So Mr. Combs did complete the drug court program. The Court was carefully listening for what form of counseling following drug court that he’s participated in[,] and the Court has not heard anything. No NA meetings, no AA meetings, no individual counseling or group counseling[.] [I]t just went silent after he graduated from drug court. The Court has not receive[d] any evidence that he continued his recovery. The Court considers . . . that he has plead[ed] to the Court and the Court also considers that he has a young family. The Court considers the criminal history as required under Indiana Law. As a juvenile[,] there were adjudications for two counts of battery followed by marijuana and paraphernalia followed by minor consumption followed by possession of marijuana and cultivating marijuana followed by minor consumption followed by possession of marijuana. Then as an adult[,] there’s a failure to stop after a property damage accident and then a conviction for theft, a conviction for visiting a common nuisance, a conviction for assisting a criminal and the instant offense of burglary [as] a class B felony. The Court also listened to the characterization of his attempts to go through the JCAP program, the recovery program inside the jail. It was his testimony that they removed him from the program for not participating and not being approachable throughout the program which obviously Mr. Combs disagreed with that assessment but that was the only evidence of what happened inside JCAP.
(Tr. 37-40). Combs now appeals.
Decision [9] Combs argues that the trial court abused its discretion by ordering him to serve
three years of his previously suspended sentence.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 11 2015, 9:39 am 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 estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weismann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shaun Combs, December 11, 2015 Appellant-Defendant, Court of Appeals Case No. 15A01-1505-CR-431 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-0102-FC-003
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 1 of 7 Statement of the Case [1] Shaun Combs (“Combs”) appeals the trial court’s order revoking his probation
and ordering him to serve three years of his previously suspended ten-year
sentence in the Department of Correction following his admission that he tested
positive for opiates. On appeal, Combs argues that the trial court should have
ordered him to serve only one year of his suspended sentence. Concluding that
the trial court did not abuse its discretion by ordering Combs to serve three
years of his previously suspended sentence, we affirm the trial court’s
revocation of Combs’s probation.
[2] Affirmed.
Issue Whether the trial court abused its discretion by ordering Combs to serve part of his previously suspended sentence.
Facts [3] In February 2001, the State charged Combs with: Count I, Class B felony
conspiracy to commit burglary; Count II, Class B felony burglary; and Count
III, Class D felony theft.1 In September 2001, pursuant to a written plea
agreement, Combs pled guilty to the Class B felony burglary charge in Count II
in exchange for the State’s dismissal of the remaining two charges. As part of
1 The State charged Combs in a joint charging information with other co-defendants. This charging information also contained a Count IV and Count V, which were not charged against Combs.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 2 of 7 the plea agreement, the parties agreed that Combs would be sentenced to
twenty (20) years with ten (10) years executed in the Department of Correction
and ten (10) years suspended to probation. Thereafter, the trial court accepted
Combs’s plea and sentenced him pursuant to the plea agreement.
[4] In January 2009, the State filed a notice of probation violation, alleging that
Combs had violated his probation by testing positive for marijuana. In
February 2009, Combs and the State entered into a negotiated agreement, in
which Combs agreed to admit to the probation violation allegation in exchange
for his participation in the Adult Drug Court Program and the deferral on any
order on the probation violation petition. The trial court accepted the parties’
negotiated agreement, and Combs later completed the drug court program.
[5] In May 2011, the State filed a second notice of probation violation, alleging that
Combs had violated his probation by being charged with Class A misdemeanor
domestic battery. Following a hearing, the trial court found that Combs did not
violate the terms of his probation.
[6] On February 5, 2015, the State filed a third notice of probation violation,
alleging that Combs had violated his probation by testing positive for opiates—
specifically, morphine—during a urine drug screen conducted in January 2015.
The trial court delayed the probation revocation hearing so that Combs could
participate in the jail’s JCAP Program. However, Combs was subsequently
removed from the program due to difficulties with participation.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 3 of 7 [7] On April 23, 2015, the trial court held a probation revocation hearing, during
which Combs admitted that he had violated his probation as alleged. He also
admitted that, during the month prior to his drug screen, he had been using
heroin two to four times per week. Combs, who was thirty-five years old at the
time of the hearing, testified that he “started using drugs at a young age” and
that his drug use “progressed over the years.” (Tr. 34). He asserted that his
substance abuse issues had led to the commission of his underlying burglary
conviction and were related to his juvenile history and criminal history. Combs
testified that he had relapsed because he was “[p]utting [him]self in the wrong
areas with the wrong people.” (Tr. 28).
[8] At the end of the hearing, the trial court determined that Combs had violated
his probation and ordered him to serve three (3) years of his previously
suspended sentence.2 When doing so, the trial court explained its reasoning as
follows:
[T]he underlying offense was a residential burglary of [a] home . . . . Mr. Combs plead[ed] guilty and received a sentence of twenty years with ten years suspended. So he served five years at the Indiana Department of Corrections followed by ten years of felony probation. When he was released onto felony probation[,] there was a positive test for a drug screen. This Court allowed him to go into drug court and without going through the entirety of drug court[,] it consist[ed] of individual counseling, group counseling, going to NA meetings, appearing before the Court at
2 The trial court ordered that Combs’s probation would be terminated upon completion of this suspended sentence.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 4 of 7 least once a week in the early stages and then end[ed] with once a month in the final six months and then regular appointments with probation. So Mr. Combs did complete the drug court program. The Court was carefully listening for what form of counseling following drug court that he’s participated in[,] and the Court has not heard anything. No NA meetings, no AA meetings, no individual counseling or group counseling[.] [I]t just went silent after he graduated from drug court. The Court has not receive[d] any evidence that he continued his recovery. The Court considers . . . that he has plead[ed] to the Court and the Court also considers that he has a young family. The Court considers the criminal history as required under Indiana Law. As a juvenile[,] there were adjudications for two counts of battery followed by marijuana and paraphernalia followed by minor consumption followed by possession of marijuana and cultivating marijuana followed by minor consumption followed by possession of marijuana. Then as an adult[,] there’s a failure to stop after a property damage accident and then a conviction for theft, a conviction for visiting a common nuisance, a conviction for assisting a criminal and the instant offense of burglary [as] a class B felony. The Court also listened to the characterization of his attempts to go through the JCAP program, the recovery program inside the jail. It was his testimony that they removed him from the program for not participating and not being approachable throughout the program which obviously Mr. Combs disagreed with that assessment but that was the only evidence of what happened inside JCAP.
(Tr. 37-40). Combs now appeals.
Decision [9] Combs argues that the trial court abused its discretion by ordering him to serve
three years of his previously suspended sentence. Combs suggests that the trial
court’s order was “unduly harsh” and that an order to serve merely one year of
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 5 of 7 his suspended sentence would “adequately punish him for his violation[.]”
(Combs’s Br. 3).
[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.
[11] The record reveals that the trial court had ample basis for its decision to order
Combs to serve three years of his previously suspended sentence in the
Department of Correction. The record indicates that, at the time Combs
committed the underlying burglary offense, he was on probation from a Class A
misdemeanor assisting a criminal conviction. Also, as specifically noted by the
trial court, Combs has a criminal history that includes both juvenile
adjudications and adult convictions. Moreover, Combs has already previously
violated his probation by using drugs. Specifically, in February 2009, he
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 6 of 7 admitted that he had violated probation by using marijuana, and the trial court
gave him a second chance and allowed him to participate in drug court. While
Combs completed the drug court program, his apparent lack of follow-up
services and his current drug use—which includes opiates and heroin—reveal a
failure to engage in a continued, long-term commitment to combating his
substance abuse issues. While Combs’s underlying conviction was for burglary
and was not a drug offense, he acknowledged that his substance abuse issues led
to the commission of this underlying offense.
[12] Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Combs to serve three years of his previously suspended
sentence. For the foregoing reasons, we affirm the trial court’s revocation of
Combs’s probation.
[13] Affirmed.3
Baker, J., and Bradford, J., concur.
3 We note that, while Combs’s underlying conviction was for burglary as a Class B felony, some of the documents contained in the Appellant’s Appendix indicate that Combs was convicted of burglary as a Class C felony. The amended abstract of judgment, however, correctly reflects that his conviction was a Class B felony.
Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015 Page 7 of 7