                                                                    FILED
MEMORANDUM DECISION
                                                               Aug 04 2016, 8:29 am

Pursuant to Ind. Appellate Rule 65(D),                              CLERK
                                                                Indiana Supreme Court
this Memorandum Decision shall not be                              Court of Appeals
                                                                     and Tax Court
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
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel Sutton,                                           August 4, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A02-1511-CR-1988
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-0303-FC-72



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 1 of 8
                                                   Case Summary
[1]   Samuel Sutton appeals the trial court’s order revoking his probation and

      requiring him to serve the entire balance of his previously-suspended sentence.

      We affirm.


                                                            Issue
[2]   The sole restated issue is whether the trial court abused its discretion in ordering

      Sutton to serve the entirety of his previously-suspended sentence after finding

      he violated probation.


                                                            Facts
[3]   In 2004, Sutton pled guilty to and was sentenced for multiple offenses: two

      counts of Class D felony battery resulting in bodily injury to a police officer,

      three counts of Class D felony pointing a firearm, one count of Class C felony

      intimidation, one count of Class B felony possession of a firearm by a serious

      violent felon, one count of Class A misdemeanor battery resulting in bodily

      injury, and one count of Class A misdemeanor resisting law enforcement. On

      July 1, 2015, the trial court granted Sutton’s petition to modify his sentence to

      time served in the Department of Correction (“DOC”), with the remaining

      1,821 days of his sentence to be suspended to probation.1 Additionally, the trial

      court ordered Sutton to successfully complete Madison County’s Re-Entry




      1
          The precise terms of Sutton’s original sentence are not in the record before us.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 2 of 8
      Court program as a condition of probation. Through the Re-Entry Court

      program, Sutton was authorized to participate in work release.


[4]   On August 26, 2015, Sutton failed to appear at a review hearing required by his

      Re-Entry Court participation agreement. Sutton’s case manager determined

      that Sutton had left the work release facility that day shortly before noon for a

      job interview with a Village Pantry store, but he did not return until shortly

      before 7:00 p.m. Attempts to verify that Sutton had actually gone to the

      interview were unsuccessful. When Sutton returned to the facility, he was strip

      searched in a restroom. Officers discovered a clear plastic baggie in Sutton’s

      underwear that appeared to contain “K2” or “Spice.” App. p. 21. Before

      officers secured the baggie, Sutton attempted to flush it down the toilet but was

      unable to do so.


[5]   The State charged Sutton with Class A misdemeanor possession of a synthetic

      drug and Class A misdemeanor trafficking with an inmate. Additionally,

      notices were filed to terminate Sutton’s placement in Re-Entry Court and to

      revoke his probation. The petition to revoke probation alleged separately that

      Sutton had committed a new crime or crimes, and that he failed to successfully

      complete the Re-Entry Court program.


[6]   At the beginning of the evidentiary hearing to determine whether Sutton had

      violated the terms of Re-Entry Court and probation, he denied that the

      substance officers recovered from him during the strip search was K2 or Spice

      and instead claimed that it was tobacco. Sutton requested a continuance of the


      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 3 of 8
      hearing until the substance could be tested, but the trial court denied the

      request. It was noted that tobacco would also have been contraband in

      violation of the rules of the work release facility; however, both the State and

      trial court acknowledged that the identity of the substance could be relevant in

      determining what sanction to impose if Sutton was found to have violated

      probation. At the conclusion of the hearing, the trial court found Sutton had

      violated the terms of Re-Entry Court and of probation by attempting to smuggle

      a forbidden substance into the work release facility. The trial court did not find

      that Sutton had committed a new crime or crimes. Before proceeding to

      sanctions, the State requested a continuance for the purpose of obtaining the lab

      results for the substance recovered from Sutton, which the trial court granted.


[7]   At the beginning of the hearing on sanctions, the State informed the trial court

      that testing on the substance had not yet been performed. Counsel for Sutton

      then told the trial court that he was “prepared to go forward with the

      sanctions.” Tr. p. 133. After Sutton testified, the trial court addressed him in

      part as follows:

              My point is, you’re trying to make excuses. You’re trying to
              minimize, and you’re trying to blame others for over reacting. I
              think based on what we have at this point, I don’t think anyone’s
              over reacted to this situation. I don’t know whether it’s tobacco
              or illegal drugs, either, okay? And at this point, the Court’s not
              really as concerned with that. It’s your actions! And the fact you
              missed court is huge!




      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 4 of 8
      Id. at 141. The trial court then revoked Sutton’s probation and ordered him to

      serve the full remainder of his previously-suspended 1,821-day sentence, less

      credit for time served. Sutton now appeals.


                                                  Analysis
[8]   Probation is a matter of grace within a trial court’s discretion and it is not a

      right to which a defendant is entitled. Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013). “It is within the discretion of the trial court to determine probation

      conditions and to revoke probation if the conditions are violated.” Id. We

      review a trial court’s determination that a probation violation occurred and any

      sanctions imposed upon such a determination for an abuse of discretion. Id.

      An abuse of discretion occurs if a decision is clearly against the logic and effect

      of the facts and circumstances before the trial court, or if the court has

      misinterpreted the law. Id.


[9]   “Probation revocation is a two-step process. First, the trial court must make a

      factual determination that a violation of a condition of probation actually

      occurred. Second, if a violation is found, then the trial court must determine

      the appropriate sanctions for the violation.” Id. (citations omitted). Even if a

      defendant admits to a probation violation, he or she must be given an

      opportunity to offer mitigating evidence in support of a claim that the violation

      does not warrant revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

      Automatically revoking probation upon the finding of a violation raises

      constitutional concerns. Id. at 641.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 5 of 8
[10]   Here, Sutton does not contend there is insufficient evidence that he violated the

       terms of his Re-Entry Court placement and, therefore, the terms of his

       probation as well. He argues only that the trial court abused its discretion in

       revoking his probation and ordering to serve his full previously-suspended 1,821

       sentence. In part, Sutton essentially contends it was an abuse of discretion for

       the trial court to order him to serve that sentence when it did not have the lab

       results confirming whether the substance seized from him at the work release

       facility was K2 or Spice, rather than tobacco. However, we note that at the

       beginning of the hearing on sanctions, Sutton’s attorney expressly stated that he

       wanted to proceed despite the lab results not yet being ready, rather than

       continuing the matter again. We conclude this constitutes either invited error

       or waiver of any claim that the trial court somehow erred in proceeding to

       consider sanctions against Sutton without having the lab results. See Wright v.

       State, 828 N.E.2d 904, 907 (Ind. 2005) (holding that party cannot take

       advantage of an error that he or she commits, invites, or which is the natural

       consequence of the party’s own neglect or misconduct); cf. Ware v. State, 859

       N.E.2d 708, 721-22 (Ind. Ct. App. 2007) (holding that if a continuance would

       cure harm caused by State failing to provide timely discovery, defendant must

       request continuance or claim of error in admitting evidence is waived), trans.

       denied.


[11]   Additionally, the trial court made it perfectly clear when it decided to revoke

       Sutton’s probation that it was unconcerned with whether the substance was K2

       or Spice rather than tobacco. Although the trial court had originally agreed


       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 6 of 8
       before commencing the hearing to determine whether Sutton had violated

       probation that the precise identity of the substance could be relevant in

       determining sanctions, plainly it had changed its mind after listening to the

       evidence of Sutton’s violations and his attempt to explain away his conduct.

       Moreover, smuggling of tobacco into the work release facility was forbidden,

       and so from that standpoint the identity of the substance was irrelevant, even if

       it was tobacco as Sutton claimed.


[12]   Finally, to the extent Sutton claims his smuggling of tobacco into the facility

       should not have been serious enough to warrant full revocation of his

       probation, we can find no abuse of discretion in the trial court’s decision. The

       trial court exercised considerable grace in July 2015 by modifying Sutton’s

       sentence for a number of serious offenses and allowing him to serve the last

       1,821 days of that sentence on probation. In response to that leniency, Sutton

       violated the terms of his work release and Re-Entry Court program less than

       two months later. Regardless of the precise substance involved, smuggling

       contraband into a secure facility is serious, and Sutton attempted to dispose of

       that contraband after a guard discovered it. He also skipped a scheduled job

       interview and a mandatory court hearing on that same day, while roaming free

       outside the work release facility for seven hours. In sum, Sutton displayed by

       his conduct a substantial disregard for the terms of his work release, Re-Entry

       Court program, and probation. This was not a constitutionally-suspect

       “automatic” revocation of Sutton’s probation upon the finding of a violation.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 7 of 8
       As such, it was not an abuse of discretion to revoke his probation and order him

       to serve the full amount of his previously-suspended sentence.


                                                 Conclusion
[13]   The trial court did not abuse its discretion in revoking Sutton’s probation and

       ordering him to serve the full amount of his previously-suspended sentence.

       We affirm.


       Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1988 | August 4, 2016   Page 8 of 8
