Steven Davenport v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 7, 2018
• Docket: 34A04-1712-CR-2983
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 07 2018, 7:37 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General Kokomo, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Davenport, June 7, 2018 Appellant-Defendant, Court of Appeals Case No. 34A04-1712-CR-2983 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff Judge Trial Court Cause No. 34C01-1008-FD-170

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018 Page 1 of 5 Case Summary [1] Steven Davenport appeals the trial court’s order requiring him to serve the

remainder of his suspended sentence in the Department of Correction for

violating his probation. Because Davenport had violated probation on three

previous occasions and was given multiple chances to no avail, we find no

abuse of discretion and affirm the trial court.

Facts and Procedural History [2] Davenport pled guilty to child solicitation, and the trial court imposed a

sentence of three years, with one year executed and two years suspended to

probation.

[3] On October 5, 2017, the State filed a Petition to Revoke Suspended Sentence,

alleging, among other things, that Davenport violated his probation by failing to

report to the probation department on October 2. Tr. Vol. II pp. 11-12. This

was the sixth petition to revoke Davenport’s probation that the State had filed

in this case. Two of the earlier petitions were dismissed, one because he pled

guilty to the crime that led to the filing of the petition. The other three petitions

resulted in Davenport serving some of his suspended sentence. See Appellant’s

App. Vol. II pp. 35-36, 41-42. At the hearing, Davenport’s probation officer

testified that Davenport was required to check-in daily at the courthouse and to

report to her once a week. Davenport admitted that he did not report on

October 2; however, he claimed that neck pain stemming from a broken jaw

Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018 Page 2 of 5 that he sustained in May 2017 “prevented [him] from walking to probation, to

the courthouse.” Tr. Vol. II p. 27. Davenport’s probation officer testified that

Davenport had never told her that his injury prevented him from reporting to

probation. Id. at 17.

[4] The trial court found that Davenport violated his probation by failing to report

on October 2:

Mr. Davenport himself has admitted that he[ ] failed to [report on October 2]. I don’t think any of the reasons that he’s given here or other evidence he’s submitted is a justifiable reason why he couldn’t report, couldn’t do the check-in . . . . You know, all this issue about, you know, the injuries that he suffered and so on and so forth, perhaps the Court would be inclined to be more lenient if this was the first time he had missed. It is not . . . . I don’t believe Mr. Davenport is able to comply with the Rules of Probation. I’m going to find just on number one, his failure to report, which he was required to do daily, that he failed to do so. He’s had a history of non-compliance in this case. Find the Petition to Revoke Suspended Sentence granted.

Id. at 27-28. The trial court ordered him to serve the balance of his suspended

sentence, which amounted to 460 days, in the DOC.

[5] Davenport now appeals.

Discussion and Decision [6] Probation revocation is a two-step process. First, the trial court must determine

that a violation of a condition of probation actually occurred. Woods v. State,

Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018 Page 3 of 5 892 N.E.2d 637, 640 (Ind. 2008). Second, the court must determine if the

violation warrants revocation of probation. Id. When a probationer admits to

the violation, the court can then proceed to the second step of the inquiry and

determine whether the violation warrants revocation. Id. The decision to

revoke probation lies within the sound discretion of the trial court, and if there

is substantial evidence of probative value to support the trial court’s decision

that a defendant has violated a term of probation, the reviewing court will

affirm its decision to revoke probation. Id. at 639-40.

[7] Davenport concedes that he violated his probation. Appellant’s Br. p. 5. He

argues, however, that the trial court abused its discretion in sentencing him to

the balance of his suspended sentence in the DOC because his violation was

attributable to his medical condition. Id. at 6. He asks us to order the balance

of his suspended sentence to be served on community corrections through work

release, in-home detention, or other community-based monitoring because it

would “increase the level of supervision he faces within the community.” Id. at

7.

[8] However, the trial court has already given Davenport multiple chances. He has

violated his probation in this case three previous times, served small periods of

time for these violations, and has returned to probation, only to violate it again.

Therefore, in light of the opportunities that Davenport has been given in this

case, the trial court did not abuse its discretion in ordering Davenport to serve

the balance of his suspended sentence in the DOC, as opposed to on

community corrections, for violating probation for a fourth time in this case.

Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018 Page 4 of 5 [9] Affirmed.

Barnes, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018 Page 5 of 5