William Mills, II v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 28, 2016
• Docket: 15A04-1602-CR-243
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jul 28 2016, 9:38 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court 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 Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William Mills, II, July 28, 2016

Appellant-Defendant, Court of Appeals Case No. 15A04-1602-CR-243

v. Appeal from the Dearborn Superior Court State of Indiana, The Hon. Sally A. McLaughlin, Judge Appellee-Plaintiff. Trial Court Cause No. 15D02-1307- FC-45

Bradford, Judge.

Case Summary [1] Following his conviction for Class C felony intimidation, Appellant-Defendant

William Mills, II, was sentenced to eight years of incarceration with four years

Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016 Page 1 of 5 and 180 days suspended to probation. In August of 2015, Appellee-Plaintiff the

State of Indiana filed a notice of violation of probation in which it alleged that

Mills refused to submit to a urine drug screen and left the probation office

without permission. Mills admitted the violations and the trial court revoked

ten days of his suspended sentence.

[2] In November of 2015, the State filed a second notice of violation of probation in

which it alleged that Mills consumed morphine without a valid prescription.

After Mills admitted the second violation, the trial court revoked two years of

Mills’s remaining probation. Mills contends that the trial court abused its

discretion in revoking two years of his remaining probation. Because we

disagree, we affirm.

Facts and Procedural History [3] In December of 2013, Mills pled guilty to Class C felony intimidation and was

sentenced to eight years of incarceration with four years and 180 days

suspended to probation. Mills’s conviction stemmed from an incident where he

pulled a knife on and pepper-sprayed a woman who confronted him about

stealing shoes from her son. On August 24, 2015, the State filed a notice of

probation violation, alleging that Mills refused to submit to a urine drug screen

and fled the probation office without permission. Mills admitted to the

allegations and was ordered to serve ten days of his suspended sentence and

return to probation afterwards.

Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016 Page 2 of 5 [4] On November 23, 2015, the State filed a second notice of probation violation,

alleging that Mills had tested positive for morphine without having a valid

prescription. On December 22, 2015, Mills admitted the violation. On January

7, 2015, the trial court ordered that Mills serve two years of his suspended

sentence, leaving a remaining balance of two years and 170 days.

Discussion and Decision [5] Probation is a “matter of grace” and a “conditional liberty that is a favor, not a

right.” Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004) (quoting Cox v.

State, 706 N.E.2d 547, 549 (Ind. 1999)). We review a trial court’s probation

revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956

(Ind. Ct. App. 2005), trans. denied. If the trial court finds that the person

violated a condition of probation, it may order the execution of any part of the

sentence that was suspended at the time of initial sentencing. Stephens v. State,

818 N.E.2d 936, 942 (Ind. 2004). Proof of a single violation of the conditions

of probation is sufficient to support the decision to revoke probation. Bussberg v.

State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).

[6] Mills contends that the trial court abused its discretion in ordering that he serve

two years of his suspended sentence. Indiana Code subsection 35-38-2-3(h)(3)

allows a trial court, in case of a violation of the terms of probation, to “[o]rder

execution of all or part of the sentence that was suspended at the time of initial

sentencing.” The Indiana Supreme Court has held that “a trial court’s

Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016 Page 3 of 5 sentencing decisions for probation violations are reviewable using the abuse of

discretion standard[,]” explaining:

Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants.

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).

[7] An abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances. Id. As long as the proper procedures have

been followed in conducting a probation revocation hearing, “the trial court

may order execution of a suspended sentence upon a finding of a violation by a

preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

App. 1999). The “[c]onsideration and imposition of any alternatives to

incarceration is a ‘matter of grace’ left to the discretion of the trial court.”

Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996).

[8] Mills argues that the trial court should have revoked no more than one year of

his probation instead of two. Under the circumstances of this case, Mills has

failed to establish an abuse of discretion. There is no allegation that the proper

procedures were not followed in this case, and Mills admitted that he violated

the terms of his probation by using morphine without a valid prescription. It is

worth noting that the instant violation represents Mills’s second probation

Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016 Page 4 of 5 violation in a three-month period, indicating that he did not benefit from the

trial court’s earlier, more lenient treatment.

[9] Moreover, Mills’s history with the juvenile and criminal justice systems

indicates that the solutions attempted to this point have not been effective in

deterring him from further criminal activity. Mills, twenty-eight years old at the

time of the revocation hearing, has juvenile adjudications for battery resulting

in bodily injury, criminal mischief, and resisting law enforcement. Mills’s adult

criminal history includes convictions for theft in 2007, strangulation in 2008,

and invasion of privacy in 2009. By way of explaining its decision to partially

revoke Mills’s probation, the trial court observed that Mills “has violent

tendencies as well as substance abuse issues that need to be addressed and can

best be addressed through a penal institution.” Tr. p. 22. Given Mills’s history

of violence and substance abuse, we do not find fault with the trial court’s

rationale. Mills has failed to establish an abuse of discretion.

[10] We affirm the judgment of the trial court.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016 Page 5 of 5