MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Oct 10 2018, 11:08 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terrell Roberts,                                         October 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1249
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C02-1208-FA-63



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018                  Page 1 of 8
                                          Statement of the Case
[1]   Terrell Roberts (“Roberts”) appeals the revocation of his probation, arguing

      that the trial court abused its discretion by ordering him to serve his previously

      suspended sentence. Finding no error, we affirm the trial court’s judgment.


[2]   We affirm.


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

                                                        Facts
[3]   In August 2012, the State charged Roberts with Class A felony dealing in a

      narcotic drug (heroin weighing three grams or more), Class C felony possession

      of a narcotic drug, and Class D felony maintaining a common nuisance. In

      June 2017, Roberts entered into a plea agreement and pled guilty to the lesser

      offense of Class D felony possession of a narcotic drug in exchange for the

      State’s dismissal of the remaining charges.1 The parties also agreed that Roberts

      would receive a sentence of 1,095 days, with 180 days executed in the Indiana

      Department of Correction and 915 days suspended to probation.2 The trial




      1
        The chronological case summary indicates that the delay between the filing of the initial charges and
      Roberts’ guilty plea was due, in part, to Roberts being incarcerated in Kentucky in 2013, the withdrawal of
      his appointed counsel in 2015, his failure to appear for a pretrial conference in 2016 that resulted in the
      issuance of an arrest warrant, and various continuances.
      2
       In other words, the parties agreed that Roberts would serve a sentence of three (3) years, with six (6) months
      executed and two and one-half (2½) years suspended to probation.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018                   Page 2 of 8
      court accepted Roberts’ guilty plea and imposed the sentence set out in the plea

      agreement.3


[4]   On February 8, 2018, the State filed a notice of probation violation, alleging

      that Roberts had violated his probation by failing to report for scheduled

      probation appointments as directed on December 12, 2017 and January 28,

      2018. The State also noted that Roberts “ha[d] absconded from probation

      supervision[.]” (App. Vol. 2 at 75) (changed from all uppercase letters). The

      State attached to the revocation petition a copy of the violation report from

      Roberts’ supervising probation officer in Kentucky. The report indicated that

      Roberts was unemployed and that the probation officer was unable to locate

      Roberts, leading the probation officer to believe that Roberts was “knowingly,

      willingly[,] and consciously concealing [his] whereabouts and absconding

      supervision.” (App. Vol. 2 at 78).


[5]   Shortly thereafter, on March 13, 2018, the State filed an amended notice of

      probation violation, adding an additional probation revocation allegation.

      Specifically, the State alleged that Roberts had committed the following crimes

      in February 2018 while on probation: (1) Level 6 felony unlawful possession or

      use of a legend drug; (2) Class A misdemeanor possession of a controlled

      substance; and (3) Class A misdemeanor resisting law enforcement. The State

      attached to the amended revocation petition a copy of the charging information




      3
       Roberts lived in Kentucky, and, pursuant to an interstate compact, his probation was supervised by a
      probation department in Jefferson County, Kentucky.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018                 Page 3 of 8
      for the three pending charges and the habitual offender allegation filed against

      him in the new criminal cause.


[6]   The trial court held a probation revocation hearing in April 2018. At the

      beginning of the hearing, Roberts’s counsel stated that they were there for an

      “open admission[.]” (Tr. 18). Roberts stated that he knew he had an obligation

      to report to his probation officer and admitted that he had not reported to

      probation as alleged in the petition to revoke. He stated that his failure to

      report was due to “a miscommunication on [his] behalf” and a “conflicting”

      work schedule. (Tr. 19).


[7]   When the State mentioned Roberts’s pending criminal charges, Roberts’

      counsel stated that he did not believe that those pending charges were part of

      the revocation petition. The State confirmed that the charges were included in

      the amended revocation petition. The trial court then asked the State if it was

      “ok with proceeding on the . . . admission as it was[,]” and the prosecutor

      stated that he “just wanted the Court to be aware that there’s a pending case.”

      (Tr. 20).


[8]   The trial court then proceeded to the parties’ recommended sanction based on

      Roberts’s admission that he had violated probation. The prosecutor

      recommended that the trial court order Roberts to serve his previously

      suspended 915-day sentence, and the probation officer agreed. Roberts’ counsel

      asked the trial court to just terminate Roberts’ probation “as unsuccessful” and




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018   Page 4 of 8
      allow Roberts to “deal with the new issues.” (Tr. 21). The trial court rejected

      Roberts’ recommendation, stating:


               I’ve gotta . . . lean toward the State on this one. And . . . there’s
               no reason for me to deviate from what I generally do, unless
               there’s something egregious with the [probation officer’s]
               recommendation. It looks like he hadn’t been on probation very
               long before he immediately violated, well, 6 months.

      (Tr. 21-22). Based on Roberts’ admission that he had violated probation, the

      trial court revoked Roberts’ probation and ordered him to serve his previously

      suspended sentence. The trial court also gave Roberts credit for time served

      and ordered him to serve purposeful incarceration. Roberts now appeals.


                                                     Decision
[9]   Roberts does not challenge the trial court’s determination that he violated

      probation. Instead, he argues that the trial court abused its discretion by

      ordering him to serve the entirety of his previously suspended sentence based on

      one probation violation. Roberts also contends that the trial court’s order for

      him to serve his previously suspended sentence violated the Proportionality

      Clause in Article I, § 16 of the Indiana Constitution, which provides, in relevant

      part, that: “All penalties shall be proportioned to the nature of the offense.” 4

      He acknowledges that our appellate courts have not applied this state

      constitutional provision to probation revocation; nevertheless, he contends that




      4
       Roberts contends that his probation violation was an “offense” and that the sanction to serve his previously
      suspended sentence was a “penalty.”

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018                  Page 5 of 8
       a trial court’s discretion to select a sanction for a defendant’s probation

       violation should be limited by Article I, § 16 of the Indiana Constitution. We

       disagree.


[10]   Our supreme court has held that “a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.”

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citing Sanders v. State, 825

       N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied) (rejecting a defendant’s

       argument that his probation violation sanction should be reviewed under the

       inappropriate standard in Indiana Appellate Rule 7(B)). Probation serves as an

       “alternative[] to commitment to the Department of Correction[,]” and is “made

       at the sole discretion of the trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind.

       1999), reh’g denied. “Because probation is a matter of grace and a conditional

       liberty that is a favor, not a right, . . probationers do not receive the same

       constitutional rights that defendants receive at trial[.]” State v. I.T., 4 N.E.3d

       1139, 1146 (Ind. 2014) (internal quotation marks and citations omitted). See

       also Castillo v. State, 67 N.E.3d 661, 665, 666 (Ind. Ct. App. 2017) (explaining

       that a defendant has due process rights in regard to the revocation of probation,

       not for the ordering of sanctions following revocation of probation), trans.

       denied.


[11]   A trial court determines the conditions of probation and may revoke probation

       if the conditions are violated. Prewitt, 878 N.E.2d at 188; see also IND. CODE §

       35-38-2-3(a). Indeed, violation of a single condition of probation is sufficient to

       revoke probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018   Page 6 of 8
       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, 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, 825 N.E.2d at 956). An abuse of

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

       facts and circumstances. Id.


[12]   Roberts contends that the trial court abused its discretion by ordering him to

       serve his previously suspended sentence because the trial court did not

       sufficiently set forth its reasons for imposing the sanction it chose. We reject

       this argument. We have explained that a trial court is “not required to provide

       specific reasons for imposing the [probation revocation] sanction.” Castillo, 67

       N.E.3d at 665, 666. The record reveals that the trial court had a sufficient basis

       for its decision to order Roberts to serve his previously suspended sentence.

       Here, Roberts was initially charged with Class A felony dealing in narcotic drug

       (heroin weighing three grams or more), Class C felony possession of a narcotic

       drug, and Class D felony maintaining a common nuisance. The trial court

       showed Roberts leniency when it accepted his guilty plea to the lesser offense of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018   Page 7 of 8
       Class D felony possession of a narcotic drug and imposed a sentence, in

       accordance with his plea agreement, that allowed him to serve the clear

       majority of his three-year sentence on probation. Roberts, however,

       squandered this opportunity when he failed to comply with the requirements of

       probation within the first six months of his two and one-half years of probation.

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

       discretion by ordering Roberts to serve his previously suspended sentence. For

       the foregoing reasons, we affirm the trial court’s revocation of Roberts’

       probation.


[13]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1249 | October 10, 2018   Page 8 of 8
