MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Dec 11 2015, 9:39 am
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
Leanna Weismann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shaun Combs,                                            December 11, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A01-1505-CR-431
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff.                                     Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-0102-FC-003



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015   Page 1 of 7
                                        Statement of the Case
[1]   Shaun Combs (“Combs”) appeals the trial court’s order revoking his probation

      and ordering him to serve three years of his previously suspended ten-year

      sentence in the Department of Correction following his admission that he tested

      positive for opiates. On appeal, Combs argues that the trial court should have

      ordered him to serve only one year of his suspended sentence. Concluding that

      the trial court did not abuse its discretion by ordering Combs to serve three

      years of his previously suspended sentence, we affirm the trial court’s

      revocation of Combs’s probation.


[2]   Affirmed.


                                                       Issue
              Whether the trial court abused its discretion by ordering Combs to
              serve part of his previously suspended sentence.

                                                      Facts
[3]   In February 2001, the State charged Combs with: Count I, Class B felony

      conspiracy to commit burglary; Count II, Class B felony burglary; and Count

      III, Class D felony theft.1 In September 2001, pursuant to a written plea

      agreement, Combs pled guilty to the Class B felony burglary charge in Count II

      in exchange for the State’s dismissal of the remaining two charges. As part of




      1
        The State charged Combs in a joint charging information with other co-defendants. This charging
      information also contained a Count IV and Count V, which were not charged against Combs.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015        Page 2 of 7
      the plea agreement, the parties agreed that Combs would be sentenced to

      twenty (20) years with ten (10) years executed in the Department of Correction

      and ten (10) years suspended to probation. Thereafter, the trial court accepted

      Combs’s plea and sentenced him pursuant to the plea agreement.


[4]   In January 2009, the State filed a notice of probation violation, alleging that

      Combs had violated his probation by testing positive for marijuana. In

      February 2009, Combs and the State entered into a negotiated agreement, in

      which Combs agreed to admit to the probation violation allegation in exchange

      for his participation in the Adult Drug Court Program and the deferral on any

      order on the probation violation petition. The trial court accepted the parties’

      negotiated agreement, and Combs later completed the drug court program.


[5]   In May 2011, the State filed a second notice of probation violation, alleging that

      Combs had violated his probation by being charged with Class A misdemeanor

      domestic battery. Following a hearing, the trial court found that Combs did not

      violate the terms of his probation.


[6]   On February 5, 2015, the State filed a third notice of probation violation,

      alleging that Combs had violated his probation by testing positive for opiates—

      specifically, morphine—during a urine drug screen conducted in January 2015.

      The trial court delayed the probation revocation hearing so that Combs could

      participate in the jail’s JCAP Program. However, Combs was subsequently

      removed from the program due to difficulties with participation.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015   Page 3 of 7
[7]   On April 23, 2015, the trial court held a probation revocation hearing, during

      which Combs admitted that he had violated his probation as alleged. He also

      admitted that, during the month prior to his drug screen, he had been using

      heroin two to four times per week. Combs, who was thirty-five years old at the

      time of the hearing, testified that he “started using drugs at a young age” and

      that his drug use “progressed over the years.” (Tr. 34). He asserted that his

      substance abuse issues had led to the commission of his underlying burglary

      conviction and were related to his juvenile history and criminal history. Combs

      testified that he had relapsed because he was “[p]utting [him]self in the wrong

      areas with the wrong people.” (Tr. 28).


[8]   At the end of the hearing, the trial court determined that Combs had violated

      his probation and ordered him to serve three (3) years of his previously

      suspended sentence.2 When doing so, the trial court explained its reasoning as

      follows:

              [T]he underlying offense was a residential burglary of [a] home . .
              . . Mr. Combs plead[ed] guilty and received a sentence of twenty
              years with ten years suspended. So he served five years at the
              Indiana Department of Corrections followed by ten years of
              felony probation. When he was released onto felony probation[,]
              there was a positive test for a drug screen. This Court allowed
              him to go into drug court and without going through the entirety
              of drug court[,] it consist[ed] of individual counseling, group
              counseling, going to NA meetings, appearing before the Court at



      2
        The trial court ordered that Combs’s probation would be terminated upon completion of this suspended
      sentence.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015        Page 4 of 7
              least once a week in the early stages and then end[ed] with once a
              month in the final six months and then regular appointments
              with probation. So Mr. Combs did complete the drug court
              program. The Court was carefully listening for what form of
              counseling following drug court that he’s participated in[,] and
              the Court has not heard anything. No NA meetings, no AA
              meetings, no individual counseling or group counseling[.] [I]t
              just went silent after he graduated from drug court. The Court
              has not receive[d] any evidence that he continued his recovery.
              The Court considers . . . that he has plead[ed] to the Court and
              the Court also considers that he has a young family. The Court
              considers the criminal history as required under Indiana Law.
              As a juvenile[,] there were adjudications for two counts of battery
              followed by marijuana and paraphernalia followed by minor
              consumption followed by possession of marijuana and cultivating
              marijuana followed by minor consumption followed by
              possession of marijuana. Then as an adult[,] there’s a failure to
              stop after a property damage accident and then a conviction for
              theft, a conviction for visiting a common nuisance, a conviction
              for assisting a criminal and the instant offense of burglary [as] a
              class B felony. The Court also listened to the characterization of
              his attempts to go through the JCAP program, the recovery
              program inside the jail. It was his testimony that they removed
              him from the program for not participating and not being
              approachable throughout the program which obviously Mr.
              Combs disagreed with that assessment but that was the only
              evidence of what happened inside JCAP.

      (Tr. 37-40). Combs now appeals.


                                                  Decision
[9]   Combs argues that the trial court abused its discretion by ordering him to serve

      three years of his previously suspended sentence. Combs suggests that the trial

      court’s order was “unduly harsh” and that an order to serve merely one year of

      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015   Page 5 of 7
       his suspended sentence would “adequately punish him for his violation[.]”

       (Combs’s Br. 3).


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

       trial court may “[o]rder execution of all or part of the sentence that was

       suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).

       “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 v. State, 878 N.E.2d 184, 188 (Ind. 2007). “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.


[11]   The record reveals that the trial court had ample basis for its decision to order

       Combs to serve three years of his previously suspended sentence in the

       Department of Correction. The record indicates that, at the time Combs

       committed the underlying burglary offense, he was on probation from a Class A

       misdemeanor assisting a criminal conviction. Also, as specifically noted by the

       trial court, Combs has a criminal history that includes both juvenile

       adjudications and adult convictions. Moreover, Combs has already previously

       violated his probation by using drugs. Specifically, in February 2009, he

       Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015   Page 6 of 7
       admitted that he had violated probation by using marijuana, and the trial court

       gave him a second chance and allowed him to participate in drug court. While

       Combs completed the drug court program, his apparent lack of follow-up

       services and his current drug use—which includes opiates and heroin—reveal a

       failure to engage in a continued, long-term commitment to combating his

       substance abuse issues. While Combs’s underlying conviction was for burglary

       and was not a drug offense, he acknowledged that his substance abuse issues led

       to the commission of this underlying offense.


[12]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Combs to serve three years of his previously suspended

       sentence. For the foregoing reasons, we affirm the trial court’s revocation of

       Combs’s probation.


[13]   Affirmed.3


       Baker, J., and Bradford, J., concur.




       3
         We note that, while Combs’s underlying conviction was for burglary as a Class B felony, some of the
       documents contained in the Appellant’s Appendix indicate that Combs was convicted of burglary as a Class
       C felony. The amended abstract of judgment, however, correctly reflects that his conviction was a Class B
       felony.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | December 11, 2015        Page 7 of 7
