Tyrone R. McGee v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 30, 2014
• Docket: 15A05-1311-CR-575
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jun 30 2014, 10:05 am 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 WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana

CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

TYRONE R. MCGEE, ) ) Appellant-Defendant, ) ) vs. ) No. 15A05-1311-CR-575 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally A. Blankenship, Judge Cause No.15D02-0707-FD-221

June 30, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Tyrone R. McGee appeals the revocation of his probation. He argues the court abused

its discretion when sending him back to prison for a year and a half because he admitted his

lapse and was cooperative. We affirm.

FACTS AND PROCEDURAL HISTORY

McGee pled guilty to possession of marijuana with a prior conviction, and he was

sentenced to 1095 days with 915 days suspended to probation. As a condition of his

probation, McGee was not to ingest alcohol or illegal substances and was to keep his

probation officer informed of his current address. On February 12, 2008, the court revoked

ninety-two days of McGee’s suspended sentence because he violated his probation by not

reporting as directed.

On July 1, 2008, the State filed a notice of probation violation that alleged McGee

failed a drug screening and did not notify probation of his current address. A warrant was

issued for his arrest, but McGee was not arrested until October 2013. McGee admitted

violating probation and the trial court revoked 550 days of his suspended sentence.

DISCUSSION AND DECISION

McGee alleges the court abused its discretion by revoking 550 days of his probation.

When reviewing a revocation decision, we consider only the evidence most favorable to the

judgment without assessing credibility of the witnesses. McHenry v. State, 820 N.E.2d 124,

126 (Ind. 2005). We affirm unless the trial court abused its discretion. Sanders v. State, 825

N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied.

McGee admitted his violation, and “[p]roof of a single violation of the conditions of

2 probation is sufficient to support the decision to revoke probation.” Bussberg v. State, 827

N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied. On finding a defendant violated his

probation, the trial court may “order execution of all or part of the sentence that was

suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(g)(3).

McGee has an extensive criminal history that includes felony convictions in multiple

states. After he failed a drug test in 2008, he evaded law enforcement for five years, during

which he committed additional crimes in Arkansas. In addition, this was McGee’s second

violation of his probation and both violations involved keeping the probation department

notified of his whereabouts. As the trial court has the discretion to consider how McGee’s

sentence would be best served, we hold the trial court did not abuse its discretion by revoking

McGee’s probation. See Kirby v. State, 746 N.E.2d 440, 443-44 (Ind. Ct. App. 2001) (stating

the trial court is entitled to consider where defendant’s sentence would best be served), trans.

denied. Accordingly, we affirm.

Affirmed.

KIRSCH, J., and BAILEY, J., concur.