MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 14 2019, 7:32 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jay A. Rigdon Curtis T. Hill, Jr. Warsaw, Indiana Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven R. Bean, August 14, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-650 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable David C. Cates, Appellee-Plaintiff. Judge Trial Court Cause No. 43D01-9512-CF-294
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 1 of 7 Case Summary [1] Steven R. Bean (“Bean”) appeals from the trial court’s revocation of a portion
of his previously-revoked sentence after Bean admitted a probation violation.
We affirm.
Issue [2] The issue on appeal is whether the trial court erred in revoking a ten-year
portion of Bean’s previously-suspended sentence for Bean’s commission of a
misdemeanor offense while he was on probation.
Facts [3] In December 1995, the State charged Bean with attempted murder, a Class A
felony (“Count I”); the State subsequently amended the charging information to
include a count of burglary causing serious bodily injury, a Class A felony
(“Count II”). On November 21, 1996, the trial court sentenced Bean, pursuant
to a plea agreement, as follows: Count I, thirty years executed; and Count II,
fifty years, suspended to probation. The trial court ordered the sentences to be
served consecutively. In October 2001, the trial court modified Bean’s
sentences to concurrent sentences and revised Bean’s sentence on Count II as
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 2 of 7 follows: fifty years, with twenty years executed and thirty years suspended to
probation. 1
[4] On March 26, 2009, Bean was released to parole and probation. The trial
court’s order “specifying conditions of probation” provided in part: “If at any
time during your probation you fail to comply with the following Court
conditions, your probation may be revoked.” Appellant’s App. Vol. III p. 101.
Among the stated conditions of probation were requirements that Bean: (1)
“shall report to [his] Probation Officer as directed”; and (2) “will obey all laws
of the City, County, State, and Federal Government.” Id. at 102.
[5] In February 2017, the State charged Bean with four counts of conversion, Class
A misdemeanors, and four counts of unauthorized entry of a motor vehicle,
Class B misdemeanors. On April 18, 2017, Bean pleaded guilty to conversion,
a Class A misdemeanor, and unauthorized entry of a motor vehicle, a Class B
misdemeanor. 2 Bean was sentenced to ten days executed and 355 days
suspended to probation on Count I; and sixty days executed and 120 days
“suspended with [Bean] to be placed on formal probation for a period of 365
days [on Count II], consecutive to Count I.” Id. at 122. The State did not
pursue revocation of Bean’s previously-suspended sentence.
1 Bean’s suspended sentence was misstated in an apparent error on the judgment of conviction; however, the trial court’s order “specifying conditions of probation” provides that, on March 19, 2009, Bean was placed on probation for thirty years, from March 16, 2009 to March 15, 2039. Appellant’s App. Vol. III p. 101. 2 The State dismissed the remaining counts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 3 of 7 [6] On November 26, 2018, Bean approached A.A., who “was walking to school”
and, “holding a one hundred ($100) dollar bill in his hand[,]” Bean stated, “‘get
in, and we can f****.’” Id. at 149 (quotations added). Bean was arrested for
promoting prostitution, a Level 5 felony, and making an unlawful proposition,
a Class A misdemeanor. On December 21, 2018, the State filed an amended
petition of probation violation and cited Bean’s recent arrest and his failure to
report to the probation department in October and November 2018.
[7] On January 17, 2019, Bean admitted, in open court, that he made an unlawful
proposition to A.A. and, thereby, violated his probation. On February 21,
2019, the trial court revoked Bean’s previously-suspended sentence and ordered
Bean to serve ten years “of the suspended portion of the sentence [ ] entered
November 21, 1996[.]” Id. at 153. Bean now appeals.
Analysis [8] Bean argues that the trial court abused its discretion in revoking a ten-year
portion of his previously-suspended sentence for his commission of a
misdemeanor offense. We review the trial court’s decision to revoke probation
for an abuse of discretion. Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct. App.
2000), trans. denied. An abuse of discretion occurs if the trial court’s decision is
against the logic and effect of the facts and circumstances before the court.
Brattain v. State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002).
[9] Indiana Code Section 35-38-2-3(g) provides that the trial court may take one of
the following three actions if the court finds the person “violated a condition”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 4 of 7 of probation: “(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; or (3) order
execution of the sentence that was suspended at the time of initial sentencing.”
[10] The violation of a single condition of probation is sufficient to permit a trial
court to revoke probation. See, e.g., Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct.
App. 2000). Generally speaking, as long as the trial court follows the
procedures outlined in Indiana Code Section 35-38-2-3, the court may properly
order execution of a suspended sentence. Crump, 740 N.E.2d at 573; see also
Pugh v. State, 819 N.E.2d 375, 375-76 (Ind. 2004) (holding that “when a trial
court revokes a defendant’s probation, it may order less than the entire amount
of the sentence originally suspended”).
[11] As we have previously found:
[T]he granting of a conditional liberty is a favor and not a right. When a trial court grants a defendant probation in lieu of an executed sentence, the trial court is taking many aspects of the defendant’s character into account. When the defendant commits a crime or violates a term of the probation, the trial court should be able to weigh that violation in its reevaluation of whether the defendant should be or should have been granted probation. . . . Once a defendant has been sentenced, the court may revoke or modify probation, upon a proper showing of a violation, at any time before the completion of the probationary period.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 5 of 7 Pugh v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 14 2019, 7:32 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jay A. Rigdon Curtis T. Hill, Jr. Warsaw, Indiana Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven R. Bean, August 14, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-650 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable David C. Cates, Appellee-Plaintiff. Judge Trial Court Cause No. 43D01-9512-CF-294
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 1 of 7 Case Summary [1] Steven R. Bean (“Bean”) appeals from the trial court’s revocation of a portion
of his previously-revoked sentence after Bean admitted a probation violation.
We affirm.
Issue [2] The issue on appeal is whether the trial court erred in revoking a ten-year
portion of Bean’s previously-suspended sentence for Bean’s commission of a
misdemeanor offense while he was on probation.
Facts [3] In December 1995, the State charged Bean with attempted murder, a Class A
felony (“Count I”); the State subsequently amended the charging information to
include a count of burglary causing serious bodily injury, a Class A felony
(“Count II”). On November 21, 1996, the trial court sentenced Bean, pursuant
to a plea agreement, as follows: Count I, thirty years executed; and Count II,
fifty years, suspended to probation. The trial court ordered the sentences to be
served consecutively. In October 2001, the trial court modified Bean’s
sentences to concurrent sentences and revised Bean’s sentence on Count II as
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 2 of 7 follows: fifty years, with twenty years executed and thirty years suspended to
probation. 1
[4] On March 26, 2009, Bean was released to parole and probation. The trial
court’s order “specifying conditions of probation” provided in part: “If at any
time during your probation you fail to comply with the following Court
conditions, your probation may be revoked.” Appellant’s App. Vol. III p. 101.
Among the stated conditions of probation were requirements that Bean: (1)
“shall report to [his] Probation Officer as directed”; and (2) “will obey all laws
of the City, County, State, and Federal Government.” Id. at 102.
[5] In February 2017, the State charged Bean with four counts of conversion, Class
A misdemeanors, and four counts of unauthorized entry of a motor vehicle,
Class B misdemeanors. On April 18, 2017, Bean pleaded guilty to conversion,
a Class A misdemeanor, and unauthorized entry of a motor vehicle, a Class B
misdemeanor. 2 Bean was sentenced to ten days executed and 355 days
suspended to probation on Count I; and sixty days executed and 120 days
“suspended with [Bean] to be placed on formal probation for a period of 365
days [on Count II], consecutive to Count I.” Id. at 122. The State did not
pursue revocation of Bean’s previously-suspended sentence.
1 Bean’s suspended sentence was misstated in an apparent error on the judgment of conviction; however, the trial court’s order “specifying conditions of probation” provides that, on March 19, 2009, Bean was placed on probation for thirty years, from March 16, 2009 to March 15, 2039. Appellant’s App. Vol. III p. 101. 2 The State dismissed the remaining counts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 3 of 7 [6] On November 26, 2018, Bean approached A.A., who “was walking to school”
and, “holding a one hundred ($100) dollar bill in his hand[,]” Bean stated, “‘get
in, and we can f****.’” Id. at 149 (quotations added). Bean was arrested for
promoting prostitution, a Level 5 felony, and making an unlawful proposition,
a Class A misdemeanor. On December 21, 2018, the State filed an amended
petition of probation violation and cited Bean’s recent arrest and his failure to
report to the probation department in October and November 2018.
[7] On January 17, 2019, Bean admitted, in open court, that he made an unlawful
proposition to A.A. and, thereby, violated his probation. On February 21,
2019, the trial court revoked Bean’s previously-suspended sentence and ordered
Bean to serve ten years “of the suspended portion of the sentence [ ] entered
November 21, 1996[.]” Id. at 153. Bean now appeals.
Analysis [8] Bean argues that the trial court abused its discretion in revoking a ten-year
portion of his previously-suspended sentence for his commission of a
misdemeanor offense. We review the trial court’s decision to revoke probation
for an abuse of discretion. Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct. App.
2000), trans. denied. An abuse of discretion occurs if the trial court’s decision is
against the logic and effect of the facts and circumstances before the court.
Brattain v. State, 777 N.E.2d 774, 776 (Ind. Ct. App. 2002).
[9] Indiana Code Section 35-38-2-3(g) provides that the trial court may take one of
the following three actions if the court finds the person “violated a condition”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 4 of 7 of probation: “(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; or (3) order
execution of the sentence that was suspended at the time of initial sentencing.”
[10] The violation of a single condition of probation is sufficient to permit a trial
court to revoke probation. See, e.g., Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct.
App. 2000). Generally speaking, as long as the trial court follows the
procedures outlined in Indiana Code Section 35-38-2-3, the court may properly
order execution of a suspended sentence. Crump, 740 N.E.2d at 573; see also
Pugh v. State, 819 N.E.2d 375, 375-76 (Ind. 2004) (holding that “when a trial
court revokes a defendant’s probation, it may order less than the entire amount
of the sentence originally suspended”).
[11] As we have previously found:
[T]he granting of a conditional liberty is a favor and not a right. When a trial court grants a defendant probation in lieu of an executed sentence, the trial court is taking many aspects of the defendant’s character into account. When the defendant commits a crime or violates a term of the probation, the trial court should be able to weigh that violation in its reevaluation of whether the defendant should be or should have been granted probation. . . . Once a defendant has been sentenced, the court may revoke or modify probation, upon a proper showing of a violation, at any time before the completion of the probationary period.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 5 of 7 Pugh v. State, 804 N.E.2d 202, 204 (Ind. Ct. App. 2004), vacated in part by Pugh v.
State, 819 N.E.2d 375, 375-76 (Ind. 2004) (internal citations and footnote
omitted).
[12] In Pugh v. State, 819 N.E.2d 375, 375-76 (Ind. 2004), our Supreme Court
summarily affirmed our opinion upholding the trial court’s decision to revoke
Pugh’s previously-suspended sentence; however, the Supreme Court vacated
part of our opinion in which we held that the trial court must order the entire
amount of the sentence originally suspended it if revokes a defendant’s
probation. Id. at 376. The Pugh Court held, rather, that “when a trial court
revokes a defendant’s probation, it may order [the defendant to serve] less than
the entire amount of the sentence originally suspended.” Id. at 375.
[13] The record here reveals that, in April 2017—eight years after Bean was released
to parole and probation—he pleaded guilty to conversion, a Class A
misdemeanor, and unauthorized entry of a motor vehicle, a Class B
misdemeanor and, thereby, violated his probation. Although Bean was
certainly eligible for revocation of his previously-suspended sentence, the State
did not pursue that penalty. Subsequently, in January 2019, when Bean
admitted to another probation violation—this time, for making an unlawful
proposition—the State invoked Indiana Code Section 35-38-2-3(g)(3) and
petitioned the trial court to “order execution of the sentence that was suspended
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 6 of 7 at the time of initial sentencing.” The trial court ordered Bean to serve ten
years of his previously-suspended sentence, and we find no abuse of discretion. 3
Conclusion [14] The trial court did not abuse its discretion in ordering Bean to serve a portion of
his previously-suspended sentence. We affirm.
[15] Affirmed.
Crone, J., and Bradford, J., concur.
3 Bean’s claim that his probation violation was for a minor offense and, therefore, did not warrant revocation of his previously-suspended sentence is unavailing. See Pugh, 804 N.E.2d at 203 (finding no abuse of discretion from the trial court’s order that defendant serve two years of her previously-suspended sentence where, as defendant argued, “her only probation violation was consuming alcohol”).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-650 | August 14, 2019 Page 7 of 7