Violet E. Tunstall v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 22, 2015
• Docket: 15A01-1506-CR-675
• Status: Published

Opinion

MEMORANDUM DECISION Dec 22 2015, 10:10 am Pursuant to Ind. Appellate Rule 65(D), 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 Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Violet E. Tunstall, December 22, 2015

Appellant-Defendant, Court of Appeals Case No. 15A01-1506-CR-675 Appeal from the Dearborn Circuit v. Court. The Honorable Kimberly A. State of Indiana, Schmaltz, Magistrate. Cause No. 15C01-0308-FA-9 Appellee-Plaintiff.

Barteau, Senior Judge

Statement of the Case [1] Violet E. Tunstall appeals the sentence imposed upon her after revoking her

probation. We affirm.

Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015 Page 1 of 5 Issue [2] The sole issue Tunstall presents for our review is whether the trial court abused

its discretion by ordering her to serve eight years executed, the remainder of her

previously-suspended sentence.

Facts and Procedural History [3] On August 21, 2003, Tunstall was charged with dealing in cocaine as a Class A

felony and maintaining a common nuisance as a Class D felony. The State

later alleged that Tunstall was an habitual offender. On July 2, 2004, Tunstall

pleaded guilty to dealing in cocaine as a Class B felony in exchange for the

dismissal of the remaining allegations against her. Pursuant to the terms of the

plea agreement, she agreed to a twenty-year sentence with fourteen years

suspended to probation and was sentenced in accordance with the terms of the

plea agreement.

[4] Tunstall was released from prison on January 11, 2006 and began her

probation. On May 11, 2006, however, the State filed a request for a probation

violation hearing, alleging that Tunstall had violated the conditions of her

probation by failing a drug screen which showed that she had used cocaine. On

August 15, 2006, Tunstall admitted the allegations and the trial court revoked

two years of her previously-suspended sentence.

[5] A second request for a probation violation hearing was filed on March 19, 2012,

alleging that Tunstall had violated the conditions of her probation by operating

a vehicle while intoxicated, a Class A misdemeanor offense, resisting law

Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015 Page 2 of 5 enforcement, as a Class A misdemeanor offense, and consuming alcohol.

Tunstall admitted the allegations and the court revoked four years of the

remaining previously-suspended sentence.

[6] On March 31, 2015, the State filed a third request for a probation violation

hearing, alleging that during a drug screen Tunstall had tested positive for

cocaine and heroin. On April 16, 2015, she admitted the violation. The trial

court revoked her probation and ordered her to serve the remainder of her

previously-suspended sentence, eight years. Tunstall now appeals.

Discussion and Decision [7] Tunstall argues that the trial court abused its discretion revoking her probation

and imposing the sentence it did. We start by observing that probation is a

matter of grace left to trial court discretion, not a right to which a criminal

defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Once a

court has exercised its grace by ordering probation rather than incarceration,

the judge should have considerable leeway in deciding how to proceed. Id.

When a court finds that a person has violated a condition of probation, the

court may: (1) continue the person on probation; (2) extend the probationary

period for no more than one year beyond the original probationary period; or

(3) order execution of all or part of the previously-suspended sentence. Ind.

Code § 35-38-2-3(h) (2012). Accordingly, a court’s sentencing decisions for a

probation violation are reviewable under the abuse of discretion standard.

Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015 Page 3 of 5 Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs where the decision is

clearly against the logic and effect of the facts and circumstances. Id.

[8] Here, Tunstall admitted her probation violation, thus an evidentiary hearing

was not required. Ind. Code § 35-38-2-3(e) (2012). During the second step of

the process—determining whether the violation warrants revocation—she was

given the opportunity to provide evidence in mitigation of her violation in

support of an appeal to the court that her violation did not warrant revocation.

See Sparks v. State, 983 N.E.2d 221, 225 (Ind. Ct. App. 2013) (after admission,

probationer must be given opportunity to submit mitigating evidence to argue

against revocation).

[9] Tunstall argues that this was her first dirty screen since her most recent release

from prison and that her relapse was the result of myriad family issues beyond

her control. Tunstall and one of her daughters testified about the family’s issues

with sobriety and inability to lead law abiding lives. One of Tunstall’s

daughters had died from a drug overdose, one daughter was in prison, a son

was on the lam after his bond was revoked, and another son was ostracized

from the family due to the thefts he had perpetrated on them. The daughter

who testified on behalf of Tunstall had only recently returned to Indiana from

Florida with her young son in support of Tunstall.

[10] Be that as it may, when faced with the stress of the chaos within her family,

Tunstall accepted her daughter-in-law’s invitation to turn to drugs as a respite

from the chaos. The probation violation that ensued was Tunstall’s third since

Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015 Page 4 of 5 her initial conviction for dealing in cocaine. Her first occurred within months

after being released from prison, testing positive for cocaine. Her second

violation resulted from her convictions of operating while intoxicated,

registering 0.28 BAC, and resisting law enforcement. The violation at issue in

this appeal involved Tunstall’s consumption of cocaine and heroin. The cutoff

for a positive result for opiates is 5,000. Tunstall’s test result was 67,000.

[11] Tunstall had been given the opportunity to lead a law abiding life. She has a

criminal history including eight Class B felony convictions. When given the

opportunity to reform herself through periods of probation, she repeatedly

returned to criminal activity. The consequence for her two previous

revocations included periods of incarceration, first two years, then four years.

Nevertheless, Tunstall violated her probation a third time. Because the trial

court’s decision is not clearly against the logic and effect of the facts and

circumstances, we find no abuse of discretion here.

Conclusion [12] In light of the foregoing, we affirm the decision of the trial court.

[13] Affirmed.

Barnes, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015 Page 5 of 5