State v. Thomas

827 N.E.2d 577, 2005 Ind. App. LEXIS 827, 2005 WL 1163267
CourtIndiana Court of Appeals
DecidedMay 18, 2005
DocketNo. 02A03-0409-CR-407
StatusPublished

This text of 827 N.E.2d 577 (State v. Thomas) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thomas, 827 N.E.2d 577, 2005 Ind. App. LEXIS 827, 2005 WL 1163267 (Ind. Ct. App. 2005).

Opinions

OPINION

SHARPNACK, Judge.

The State appeals the trial court's placement of Nicholas Thomas in the Allen County Community Corrections Home Detention Program. The State raises one issue, which we restate as whether the trial court exceeded its statutory authority when it sentenced Thomas to serve his executed sentence in the Allen County Community Corrections Home Detention Program. Further, Thomas raises one issue, which we restate as whether the State's appeal should be dismissed as moot.

We affirm.

The relevant facts follow. In June 2003, the State charged Thomas with robbery as a class B felony.1 On March 4, 2004, a [579]*579jury found Thomas guilty as charged. On March 9, 2004, the Unit Supervisor of the Allen County Work Release program sent a letter to the trial court advising that Thomas was ineligible for placement with the program due to the nature of Thomas's offense. On April 30, 2004, the Allen County Community Corrections advised the trial court that Thomas was ineligible for placement with their home detention program because the present criminal offense was not compatible with Ind.Code § 35-38-2.6.

~ On April 30, 2004, the trial court sentenced Thomas to ten years with one year executed and nine years suspended. The trial court ordered Thomas to serve the executed portion of his sentence in the Allen County Community Corrections Home Detention Program. The trial court also placed Thomas on probation for two years. On May 28, 2004, the State filed a motion to correct error and argued that Thomas could not serve the executed portion of his sentence on home detention "by way of direct placement in community corrections under IC 35-38-2.6." Appellant's Appendix at 84. The trial court denied the State's motion to correct error.

On September 23, 2004, Myrna Greene, the Intake Coordinator for the Allen County Community Corrections Program, filed a Verified Petition for Revocation of Home Detention. Greene alleged that Thomas had violated the executed order for home detention. Thomas admitted the allegations of the Verified Petition for Revocation of Home Detention. On November 4, 2004, the trial court modified the April 30, 2004 sentencing order as follows:

Defendant in Court and with Attorney D. Frew and State by [Deputy Prosecuting Attorney] A. Mildred. Over the objection of the State the Court's order of [April 30, 2004] is modified to the extent that Defendant is ordered to serve 1 year of his probation time in the '[Allen County Work Release Program|]. The Defendant shall not receive good time credit for the 1 year in the [Allen County Work Release Program]. Upon completion of the 1 year in the [Allen County Work Release Program] the Defendant is ordered returned to the [Allen County Community Corrections Home Detention] program to serve the remainder of his executed sentence.

Appellee's Appendix at 4.

Prior to addressing the issue raised by the State, we must first address Thomas's argument that the State's appeal should be dismissed as moot because the trial court's November 4, 2004, order renders the original sentence meaningless.2 The long-standing rule in Indiana courts has been that a case is deemed moot when no effective relief can be rendered to the parties before the court. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind.1991). "When the concrete controversy at issue in a case has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved, the case will be dismissed." Id.

The State argues that the trial court exceeded its statutory authority, on April 30, 2004, when it sentenced Thomas to serve his executed sentence in the Allen County Community Corrections Home Detention Program. The November 4, 2004, order still contains a provision sentencing Thomas to serve his executed sentence in the Community Corrections Home Detention Program. Thus, the November 4, 2004, order does not end the concrete controversy at issue and we will address the merits of the State's claim.

[580]*580Judge Baker concurs in the determination that this issue is not moot, but contends that our inquiry should end here because Thomas accepts the State's "contentions and arguments as being legally and factually correct." Appellee's Brief at 5. We respectfully disagree.

Our supreme court addressed a similar issue in Myers v. State, 233 Ind. 66, 116 N.E.2d 839 (1954). In Myers, the State as appellee filed a brief in which it confessed error and admitted that the judgment of the trial court should be reversed. Id. at 67, 116 N.E.2d at 839. Our supreme court held that "[i]t is nevertheless the duty and responsibility of this court to examine the record and determine whether the law, as applied to the facts in the case, requires reversal of the judgment of conviction." Id.

In Nash v. State, 433 N.E.2d 807, 810 (Ind.Ct.App.1982), the State as appellee conceded that the trial court erred in denying the appellant's motion to suppress two items. We held that "ilt is nevertheless the duty of this court to examine the record and decide the law as applied to the facts." Id. (citing Myers v. State, 233 Ind. 66, 116 N.E.2d 839 (1954); Green v. State, 232 Ind. 596, 115 N.E.2d 211(1953)). We also held that "[blecause [appellant] has not favored us with a transcript of the suppression hearing, we are unable to conclude the trial court erred in admitting the [two items] into evidence." Id.

In Gardner v. State, 591 N.E.2d 592, 593 (Ind.Ct.App.1992), the State failed to file an appellee's brief. We held that the failure to file an appellee's brief raises the same concerns as those raised when the State concedes error. Id. We held that the appellant "must still demonstrate error to warrant reversal," and that "[wlere we to accept a concession as dispositive of an issue, we would effectively abdicate our judicial function in favor of a party." Id. We also held that "by requiring the appellant to show some error, we ensure that the court, not the parties decides the law." Id. Accordingly, despite Thomas's concession, we will examine the issue presented by the State. See, e.g., Nash, 433 N.E.2d at 810.

The sole issue is whether the trial court exceeded its statutory authority when it sentenced Thomas to serve his executed sentence in the Allen County Community Corrections Home Detention Program. Trial courts possess discretionary power to determine a sentence "within statutorily prescribed parameters." Strowmatt v. State, 779 N.E.2d 971, 976 (Ind.Ct.App.2002). Sentencing decisions are reviewed on appeal only for an abuse of discretion. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.2002). An abuse of discretion occurs if "the decision is clearly against the logic and effect of the facts and circumstances." - Pierce v. State, 705 N.E.2d 173, 175 (Ind.1998).

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827 N.E.2d 577, 2005 Ind. App. LEXIS 827, 2005 WL 1163267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-indctapp-2005.