MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Dec 27 2017, 9:15 am

Memorandum Decision shall not be regarded as                               CLERK
precedent or cited before any court except for the                     Indiana Supreme Court
                                                                          Court of Appeals
purpose of establishing the defense of res judicata,                        and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jeffery Haupt                                          Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                            Attorney General of Indiana
South Bend, Indiana
                                                       Henry A. Flores, Jr.
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Irwin McNeil Scott,                                        December 27, 2017

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           71A04-1706-CR-1222

        v.                                                 Appeal from the St. Joseph Superior
                                                           Court
State of Indiana,                                          The Hon. Elizabeth Hurley, Judge
                                                           Trial Court Cause No.
Appellee-Petitioner.
                                                           71D08-1508-F5-178




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017       Page 1 of 5
                                          Case Summary
[1]   After Appellant-Respondent Irwin Scott pled guilty to carrying a handgun

      without a license in cause number 71D08-1508-F5-178 (“Cause No. 178”), the

      trial court suspended three years of his six-year sentence to probation. Less

      than a year later, Scott violated the terms of his probation in Cause No. 178 by

      committing three new felonies in cause number 71D08-1610-F3-64 (“Cause No.

      64”). Following Scott’s guilty plea to those felonies and his admission that their

      commission violated the terms of his probation, the trial court ordered that he

      serve three years in community corrections followed by three years of probation

      in Cause No. 178, to be served after completion of his sentence in Cause No.

      64. Scott contends that the trial court abused its discretion in ordering

      community corrections followed by probation. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On December 14, 2015, in Cause No. 178, Scott pled guilty to Level 5 felony

      carrying a handgun without a license, and the trial court subsequently imposed

      a six-year, suspended sentence and ordered three years of probation. On

      October 12, 2016, while operating a vehicle under the influence of illegal

      substances, Scott fled from police and crashed the vehicle into a pole, flipping

      the vehicle over. Scott fled the scene without rendering aid to two eight-year-

      old passengers who had sustained serious bodily injury in the crash.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017   Page 2 of 5
[3]   On October 14, 2016, the State charged Scott in Cause No. 64 with two counts

      of Level 3 felony failure to remain at the scene of an accident and Level 6

      felony resisting law enforcement. On March 27, 2017, Scott pled guilty as

      charged in Cause No. 64 and admitted that he had violated the terms of his

      probation in Cause No. 178. On May 10, 2017, the trial court sentenced Scott

      in Cause No. 64 to twenty-two years of incarceration. In Cause No. 178, the

      trial court ordered Scott to serve three years of his previously-suspended

      sentence in community corrections, followed by three years of probation, to be

      served upon completion of his sentence in Cause No. 64.


                                Discussion and Decision
[4]   Scott argues that the trial court abused its discretion in ordering three years in

      community corrections, followed by three years of probation, for violating the

      terms of his probation in Cause No. 178. Probation is a “matter of grace” and a

      “conditional liberty that is a favor, not a right.” Marsh v. State, 818 N.E.2d 143,

      146 (Ind. Ct. App. 2004) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.

      1999)). We review a trial court’s probation revocation for an abuse of

      discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans.

      denied. If the trial court finds that the person violated a condition of probation,

      it may order the execution of any part of the sentence that was suspended at the

      time of initial sentencing. Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004); see

      also Ind. Code § 35-38-2-3(h)(3) (allowing a trial court, in case of a violation of

      the terms of probation, to “[o]rder execution of all or part of the sentence that

      was suspended at the time of initial sentencing.”). Proof of a single violation of

      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017   Page 3 of 5
      the conditions of probation is sufficient to support the decision to revoke

      probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).


[5]   The Indiana Supreme Court has explained that


              [o]nce a trial court has exercised its grace by ordering probation
              rather than incarceration, the judge 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 judges might be less inclined to order
              probation to future defendants.

      Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).


[6]   An abuse of discretion occurs where the decision is clearly against the logic and

      effect of the facts and circumstances. Id. As long as the proper procedures have

      been followed in conducting a probation revocation hearing, “the trial court

      may order execution of a suspended sentence upon a finding of a violation by a

      preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

      App. 1999). The “[c]onsideration and imposition of any alternatives to

      incarceration is a ‘matter of grace’ left to the discretion of the trial court.”

      Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996).


[7]   Under the circumstances of this case, Scott has failed to establish an abuse of

      discretion. There is no allegation that the proper procedures were not followed,

      and Scott admitted that he violated the terms of his probation by committing

      three new felonies. Moreover, Scott’s criminal history indicates that the

      solutions attempted to this point, including probation, community corrections,


      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017   Page 4 of 5
      and incarceration, have not been effective in deterring him from further

      criminal activity. The twenty-seven-year-old Scott has previous convictions for

      Class C misdemeanor minor consuming alcohol, Class B felony burglary, what

      seems to be Class A misdemeanor resisting law enforcement, Class C

      misdemeanor driving without ever having had a license, and Class D felony

      unlawful possession or use of a legend drug or precursor. Despite this history

      and previous attempts at leniency, Scott’s tendency to commit serious crimes is,

      if anything, becoming more pronounced. Given Scott’s admission to violating

      the terms of his probation and the proven failure of leniency to reform him, we

      do not find fault with the trial court’s imposition of three years of community

      corrections followed by three years of probation. Scott has failed to establish an

      abuse of discretion.


[8]   We affirm the judgment of the trial court.


      Robb, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1706-CR-1222 | December 27, 2017   Page 5 of 5
