MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Oct 08 2015, 9:25 am
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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Plainfield, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle E. Marvel,                                          October 8, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1503-CR-116
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         84D03-1208-FC-2583
                                                         84D03-1012-FB-4037



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 1 of 10
                                         Statement of the Case
[1]   Kyle E. Marvel (“Marvel”) appeals from the revocation of his probation in two

      separate cause numbers. Marvel pled guilty to Class C felony battery1 in one

      cause (“battery cause”) and to Class B felony burglary2 in another cause

      (“burglary cause”), and his plea agreement set forth the sentence to be imposed

      in both causes. The trial court sentenced him, pursuant to his plea agreement,

      to consecutive sentences of five years with two years executed on work release

      and three years suspended to formal probation in the battery cause and to six

      years with all six years suspended and four years on informal probation in the

      burglary cause.


[2]   While on probation, Marvel committed another crime and possessed a shotgun

      in violation of the terms of his probation. In a consolidated hearing, the trial

      court: (1) revoked Marvel’s probation in the battery cause and ordered him to

      serve all of his previously suspended three-year sentence; (2) revoked Marvel’s

      probation in the burglary cause and ordered him to serve three years of his

      previously suspended six-year sentence and to serve the remaining three years




      1
       IND. CODE § 35-42-2-1. We note that, effective July 1, 2014, a new version of this battery statute was
      enacted and that Class C felony battery is now a Level 5 felony. Because Marvel committed this crime in
      2012, we will refer to the statute in effect at that time.
      2
        I.C. § 35-43-2-1. A new version of this burglary statute was enacted on July 1, 2014, and Class B felony
      burglary is now a Level 4 felony. Because Marvel committed this crime in 2010, we will refer to the statute
      in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015            Page 2 of 10
      on formal probation; and (3) ordered him to serve the executed portions of

      these previously suspended sentences consecutively.


[3]   In this consolidated appeal, Marvel does not challenge the revocation of his

      probation or the trial court’s decision that he serve some of his previously

      suspended sentences in both causes. Instead, he contends that this case should

      be remanded because the trial court (1) erroneously believed that it was required

      to order him to serve the executed portion of his two revoked sentences

      consecutively; and (2) the trial court had authority to sentence him to

      concurrent sentences. Because Marvel’s original sentencing order provided that

      he serve the two sentences consecutively, we conclude that the trial court did

      not abuse its discretion when it revoked Marvel’s probation and ordered the

      executed portion of his two previously suspended sentences to be served

      consecutively.


[4]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion by ordering Marvel to
              serve the executed portion of his two previously suspended
              sentences consecutively.

                                                     Facts
[5]   In December 2010, the State charged Marvel with Class B felony burglary and

      Class D felony theft in Cause 84D03-1012-FB-4037 (“Cause 4037”). In

      November 2011, Marvel tendered a plea of guilty to the Class B felony burglary

      charge under an “Adult Mental Health Deferral Agreement” (“mental health
      Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 3 of 10
      deferral agreement”). (App. 114). Under this agreement, the trial court

      deferred entry of Marvel’s judgment of conviction contingent upon his

      successful participation in a mental health program.


[6]   However, prior to completing the mental health program, Marvel violated the

      terms of the mental health deferral agreement when he committed a new

      offense of battery in August 2012. Thereafter, the State filed a motion to revoke

      Marvel’s mental health deferral agreement and to enter judgment of conviction

      in Cause 4037. The State also charged Marvel with Class C felony battery

      resulting in bodily injury in Cause 84D03-1208-FC-2583 (“Cause 2583”).


[7]   In February 2013, Marvel entered into a written plea agreement and pled guilty

      as charged in Cause 2583. Under the terms of his plea agreement, Marvel also

      admitted that he had violated the mental health deferral agreement in Cause

      4037. Additionally, he agreed to accept the State’s sentencing

      recommendations set forth in the plea agreement, which called for Marvel to be

      sentenced as follows: (1) in Cause 2583, to a sentence of five years with two

      years executed on work release and three years suspended to formal probation;

      (2) in Cause 4037, to a sentence of six years with all six years suspended and

      four years on informal probation; and (3) the sentences in Cause 2583 and

      Cause 4037 were to be “served consecutively as required by law.” (App. 31).

      Thereafter, the trial court entered judgments of conviction in both causes and

      sentenced Marvel as set forth in the plea agreement.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 4 of 10
[8]    On January 5, 2015, the State filed a notice of probation violation, alleging that

       Marvel had violated his probation in both causes by: (1) committing the

       misdemeanor offense of unlawful possession of drug paraphernalia in Illinois in

       August 2014; (2) committing the offenses of Level 4 felony unlawful possession

       of a firearm by a serious violent felon and Level 6 felony dealing in a sawed-off

       shotgun in Indiana on December 11, 2014; (3) possessing a firearm in violation

       of probation rules; and (4) consuming alcohol in violation of probation rules.


[9]    On January 25, 2015, the trial court held a consolidated hearing on Marvel’s

       probation revocation in Cause 2583 and Cause 4037. During the hearing, the

       State admitted, without objection, a copy of the criminal complaint, guilty plea,

       and judgment of conditional discharge from Marvel’s Illinois offense. The State

       also presented testimony from Marvel’s probation officer, who testified that,

       during a probation meeting, Marvel admitted to her that he had a shotgun.

       Marvel told the probation officer that the police had found the shotgun when

       the officers went to his grandparents’ house on a domestic disturbance call.3

       The State also presented testimony from one of the responding police officers,

       who testified that the gun found in the house was a sawed-off twelve-gauge

       shotgun.


[10]   The trial court determined that Marvel had violated his probation in both

       causes by committing a subsequent criminal offense in Illinois and by




       3
           Marvel’s grandparents had called police to report a fight between Marvel and his girlfriend.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015              Page 5 of 10
       possessing a firearm while on probation. For Cause 2583, the trial court

       ordered Marvel to serve the balance of his previously suspended three-year

       sentence in the Department of Correction (“DOC”). For Cause 4037, the trial

       court ordered him to serve three years of his previous six-year suspended

       sentence in the DOC and to serve the remaining three years on formal

       probation. The trial court ordered that the executed time of the previously

       suspended sentences be served consecutively and informed Marvel that he

       would, therefore, be required to serve a total of six years in the DOC. Marvel

       now appeals.


                                                   Decision
[11]   Marvel argues that the trial court erred by ordering him to serve the executed

       portion of his two previously suspended sentences consecutively.


[12]   “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). The trial court determines the conditions of probation and may revoke

       probation if the conditions are violated. Id.; see also IND. CODE § 35-38-2-3(a).

       Upon determining that a probationer has violated a condition of probation, the

       trial 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.


               (2) Extend the person’s probationary period for not more than
               one (1) year beyond the original probationary period.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 6 of 10
               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.


       I.C. § 35-38-2-3(h). “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.” Prewitt, 878 N.E.2d at 188. “If this discretion

       were not given to trial courts and sentences were scrutinized too severely on

       appeal, trial judges might be less inclined to order probation to future

       defendants.” Id. As a result, we review a trial court’s sentencing decision from

       a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825

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

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[13]   Marvel does not challenge the revocation of his probation. Nor does he

       challenge the trial court’s decision that he serve all or part of his previously

       suspended sentences in both causes. Instead, Marvel contends that this case

       should be remanded because the trial court “erroneously believed” that it was

       required to order him to serve the executed portion of his two revoked sentences

       consecutively. (Marvel’s Br. 3). Marvel’s argument seemingly stems from the

       trial court’s sentencing orders for both causes, in which the trial court stated

       that the sentences for Cause 2583 and Cause 4037 “shall be served

       consecutively as required by law, for a total sentence of six (6) years followed

       by three (3) years of formal probation.” (App. 62,181). Marvel acknowledges



       Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 7 of 10
that, under INDIANA CODE § 35-50-1-2(d)(1),4 the trial court was required, in its

original sentencing hearing, to order his sentences in Cause 2583 and Cause

4037 to be served consecutively.5 He contends, however, that in this probation

revocation proceeding, the trial court had discretion to order him to serve his

executed portion of his two revoked sentences concurrently, rather than

consecutively. Specifically, Marvel asserts that INDIANA CODE § 35-38-2-3—

the statute pertaining to sanctions that a trial court may impose upon finding

that a defendant has violated a condition of probation—should be read to grant

a trial court the authority to order concurrent sentences upon a probation

revocation. He reasons that if INDIANA CODE § 35-38-2-3 provides a trial court

with “discretion to do nothing at all about the [probation] violation, then it also

has the discretion to run any executed time it does impose concurrent with

other sentences.” (Marvel’s Br. 3).




4
    At the time of Marvel’s original sentencing, INDIANA CODE § 35-50-1-2(d)(1) provided:

           If, after being arrested for one (1) crime, a person commits another crime:
              (1) before the date the person is discharged from probation, parole, or a term of
              imprisonment for the first crime; or
              (2) while the person is released:
                  (A) upon the person’s own recognizance; or
                  (B) on bond;
           the terms of imprisonment for the crimes shall be served consecutively, regardless of the
           order in which the crimes are tried and sentences are imposed.
(Emphasis added). This consecutive sentencing provision can be currently found at INDIANA CODE
§ 35-50-1-2(e)(1).
5
 Although not mentioned by Marvel, his plea agreement also called for his sentences to be served
consecutively.

Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015                  Page 8 of 10
[14]   First, we do not agree with Marvel’s assertion that INDIANA CODE § 35-38-2-3

       should be read to include authority for a trial court to impose concurrent

       sentencing. Such a reading is incompatible with the plain language of this

       statute, and we will not interpret it beyond its plain language. See Pierce v. State,

       29 N.E.3d 1258, 1265 (Ind. 2015) (“When the statutory language is clear and

       unambiguous, we give effect to its plain and ordinary meaning.”).


[15]   Nor do we agree with Marvel’s contention that the trial court could make a

       change to the original sentencing order in a probation revocation hearing and

       order him to serve the executed portion of his two revoked sentences

       concurrently, rather than consecutively. Such argument is based on the

       incorrect supposition that a trial court has discretion to sentence—or in this

       case, impose concurrent sentences—at a probation revocation proceeding. A

       trial court, however, does not “sentence” a defendant in a probation revocation

       proceeding. As our Indiana Supreme Court has explained:

               [T]he action taken by a trial court in a probation revocation
               proceeding is not a “sentencing.” The court is merely
               determining whether there has been a violation of probation and,
               if so, the extent to which the court’s conditional suspension of the
               original sentence should be modified and/or whether additional
               conditions or terms of probation are appropriate.


[16]   Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008). In other words, a trial court’s

       sentence determination in a probation revocation proceeding is a reinstatement

       of an already imposed sentence, which cannot be collaterally attacked. See

       Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009) (citing Stephens v. State,

       Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 9 of 10
       818 N.E.2d 936, 939 (Ind. 2004) (observing that a defendant cannot collaterally

       attack a sentence on appeal from a probation revocation)).


[17]   At the time of Marvel’s original sentencing hearing, the trial court was

       required—under both INDIANA CODE § 35-50-1-2(d)(1) and the terms of

       Marvel’s plea agreement—to order his sentences under Cause 2583 and Cause

       4037 to be served consecutively. Here, in this probation revocation proceeding,

       the trial court was merely required to determine whether there was a violation

       of Marvel’s probation and the extent to which the suspended portion of his

       original sentences would be served. See id. The trial court did so, determining

       that Marvel had violated his probation and ordering him to serve the balance of

       his previously suspended sentence in Cause 2583 and to serve three years of the

       six years previously suspended in Cause 4037. Accordingly, the trial court did

       not abuse its discretion by ordering Marvel to serve the executed portion of his

       previously suspended sentences consecutively where the original sentencing

       provided that they be served consecutively. For the foregoing reasons, we

       affirm the trial court’s revocation of Marvel’s probation in both Cause 2583 and

       Cause 4037.


[18]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1503-CR-116 | October 8, 2015   Page 10 of 10
