MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Jun 27 2017, 8:42 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Pierre Burdette,                                         June 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1702-CR-409
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1407-F6-42



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017       Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Pierre D. Burdette (Burdette), appeals the trial court’s

      imposition of an executed sentence as a sanction for Burdette’s admitted

      probation violation.


[2]   We affirm.


                                                    ISSUE
[3]   Burdette raises one issue on appeal, which we restate as: Whether the trial

      court abused its discretion in sanctioning Burdette’s probation violation.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 8, 2014, under Cause Number 02D05-1407-F6-042 (Cause F6-042),

      Burdette pled guilty pursuant to a plea agreement to resisting law enforcement,

      a Level 6 felony, Ind. Code § 35-44.1-3-1(b)(1). In accordance with the plea

      agreement, the trial court entered a judgment of conviction and sentenced

      Burdette to a term of two years, fully suspended to probation. Twenty days

      later, on October 28, 2014, the State filed a petition to revoke Burdette’s

      probation after he was charged with committing the additional offenses of

      resisting law enforcement as a Level 6 felony, driving while suspended with a

      prior as a Class A misdemeanor, and reckless driving as a Class B

      misdemeanor. The State’s petition to revoke probation was amended on

      December 12, 2014, after Burdette absconded from supervision. On April 13,

      2015, Burdette admitted to the probation violation. Accordingly, on April 23,

      2015, the trial court modified Burdette’s suspended sentence by sentencing him
      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 2 of 8
      to one year on home detention through Allen County Community Corrections,

      followed by one year of probation. Burdette completed his term of home

      detention and resumed supervised probation on March 4, 2016.


[5]   While still on probation, on November 8, 2016, Burdette was charged with

      having committed four new offenses under Cause Number 02D05-1611-F6-

      1218 (Cause F6-1218): domestic battery committed in the presence of a child, a

      Level 6 felony, I.C. § 35-42-2-1.3(a)(1),(b)(2); interference with the reporting of

      a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1); invasion of privacy, a

      Class A misdemeanor, I.C. § 35-46-1-15.1(2); and criminal mischief, a Class B

      misdemeanor, I.C. § 35-43-1-2(a). The facts supporting these charges provide

      that on September 10, 2016, Burdette went to the home of his ex-girlfriend’s

      mother, where the ex-girlfriend was present, despite the fact that his ex-

      girlfriend had an active protective order prohibiting Burdette from contacting

      her. Upon Burdette’s arrival, Burdette’s ex-girlfriend immediately called 9-1-1.

      As the ex-girlfriend was talking to a police dispatcher, Burdette snatched the

      phone from her hand and threw it on the ground, causing it to shatter. In the

      course of grabbing the phone away, Burdette scratched his ex-girlfriend behind

      the ear, and when she tried to retrieve the phone from the ground, Burdette

      pushed her away. The former couple’s shared children, a five-year-old and a

      one-year-old, witnessed the event. Burdette fled the scene before the police

      arrived.


[6]   On November 14, 2016, the State petitioned to revoke Burdette’s probation

      under Cause F6-042. On January 17, 2017, after a jury was sworn in for the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 3 of 8
      scheduled jury trial in Cause F6-1218, Burdette pled guilty to interference with

      the reporting of a crime as a Class A misdemeanor, invasion of privacy as a

      Class A misdemeanor, and criminal mischief as a Class B misdemeanor. In

      exchange, his charge of Level 6 felony domestic battery was dismissed. At the

      same time, Burdette also admitted that he had violated his probation under

      Cause F6-042 by committing the three misdemeanor offenses to which he had

      pled guilty.


[7]   On February 16, 2017, the trial court held a combined sentencing hearing for

      Burdette’s new convictions under Cause F6-1218 and his probation violation

      under Cause F6-042. In Cause F6-1218, the trial court imposed an aggregate

      sentence of one year. For Cause F6-042, the trial court revoked Burdette’s

      probation and sentenced him to one year in the Indiana Department of

      Correction (DOC). The sentences in Cause F6-1218 and F6-042 were ordered

      to be served consecutively.


[8]   Burdette now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   “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). Accordingly, the trial court sets the conditions of probation and may

      revoke the privilege if said conditions are violated. Id. When reviewing an

      appeal from a probation revocation, our court considers only the evidence most

      favorable to the trial court’s judgment, and we do not reweigh evidence or

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 4 of 8
       assess witness credibility. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App.

       2006). In considering probation revocation, the trial court must first determine

       that a violation of a probation condition has occurred; then, the trial court must

       determine if the probation warrants revocation. Id.


[10]   As recognized by our supreme court, if a trial court exercises its discretionary

       grace to order probation in lieu of incarceration, it “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 [courts]

       might be less inclined to order probation to future defendants.” Prewitt, 878

       N.E.2d at 188. As such, following a probation violation, a trial court’s

       sentencing decision is reviewed under the abuse of discretion standard. Id. We

       will find an abuse of discretion “where the [trial court’s] decision is clearly

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


[11]   Here, Burdette does not dispute that he violated his probation by committing

       new crimes. Rather, Burdette claims that the trial court abused its discretion by

       ordering the entirety of his one-year probationary term to be executed in the

       DOC. Pursuant to Indiana Code section 35-38-2-3(h),


               [i]f the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke
               is filed within the probationary period, the court may impose one
               (1) or more of the following sanctions:

               (1) Continue the person on probation, with or without modifying
               or enlarging the conditions.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 5 of 8
               (2) Extend the person’s probationary period for not more than
               one (1) year beyond the original probationary period.

               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.


[12]   Although the trial court was statutorily authorized to order the one-year

       commitment to the DOC, Burdette contends that he should have been re-

       referred to home detention to serve out the suspended sentence. In support of

       this, Burdette cites his successful completion of home detention following his

       first probation violation. He also points to his claims during the sentencing

       hearing that the altercation was the result of his ex-girlfriend “keeping his

       children from him.” (Appellant’s Br. p. 9). Burdette asserts that his “crimes are

       in the nature of an isolated, emotional outburst, and thus are not likely to

       recur.” (Appellant’s Br. p. 9). He bids our court to “decide if a man’s ill-

       conceived attempt to see his children is worth a year of freedom.” (Appellant’s

       Br. p. 9).


[13]   We find that the trial court’s chosen sanction was well within its discretionary

       authority. Burdette initially received his suspended sentence in October of

       2014. Not even a month later, Burdette committed new crimes, including the

       same crime (resisting law enforcement) for which he was already on probation.

       Burdette also failed to appear for four probation meetings and could not be

       contacted; thus, he was alleged to have absconded. Nevertheless, the trial court

       accorded leniency and sanctioned Burdette by ordering him to serve one year of

       home detention, followed by one year of probation. Instead of taking

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 6 of 8
       advantage of this second chance, Burdette once again violated the conditions of

       his probation by committing the crimes in F6-1218. Thus, he has not only

       demonstrated an utter lack of respect for the authority of the court, he has made

       it abundantly clear that he is incapable of serving his sentence while free in

       society. Moreover, as the State points out, Burdette refused to cooperate with

       the preparation of his pre-sentence investigation report and screening for an

       alternative sentence, leaving the trial court with little information to support

       any sanction other than an executed term.


[14]   Finally, we note that we are unpersuaded by Burdette’s efforts to minimize the

       severity of his crimes as a basis for a more favorable sanction. There is nothing

       redeemable about Burdette’s conduct. He admitted that while on probation

       under F6-042, he violated a protective order and subsequently got into an

       altercation with his ex-girlfriend in front of their young children, which resulted

       in a scratch to his ex-girlfriend and a shattered cell phone. He then attempted

       to shift the blame to the ex-girlfriend for somehow “provok[ing]” him. (Tr. Vol.

       II, p. 27). Regardless, the specific nature of his crime is irrelevant; the fact

       remains that Burdette committed multiple new offenses while on probation.

       Clearly, a term of incarceration is necessary in order for Burdette to

       comprehend the importance of abiding by the law.


                                             CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court acted within its

       discretion by ordering Burdette to execute his suspended sentence following his

       probation violation.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 7 of 8
[16]   Affirmed.


[17]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-409 | June 27, 2017   Page 8 of 8
