MEMORANDUM DECISION
                                                             Oct 09 2015, 9:23 am
Pursuant to Ind. Appellate Rule 65(D), 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
Lawrence M. Hansen                                        Gregory F. Zoeller
Noblesville, Indiana                                      Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Percifield,                                      October 9, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1502-CR-89
        v.                                               Appeal from the Hamilton County
                                                         Superior Court;
                                                         The Honorable Steven R. Nation,
State of Indiana,                                        Judge;
Appellee-Plaintiff.                                      29D01-1004-FC-36




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-89 | October 9, 2015    Page 1 of 4
[1]   Michael Percifield appeals the court’s imposition of the remainder of his

      suspended sentence for his violation of probation, asserting the court’s decision

      was an abuse of discretion.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On April 8, 2010, Percifield was charged with Class C felony intimidation 1 and

      Class D felony pointing a firearm. 2 Percifield agreed to plead guilty to pointing

      a firearm in exchange for the State dismissing the intimidation charge. The

      court accepted that agreement, convicted Percifield of pointing a firearm, and

      sentenced Percifield to three years in the Department of Correction, with 90

      days executed and the remaining 1,005 days suspended to probation.


[4]   While on probation, Percifield fled the scene of an accident resulting in death,

      which is a Class C felony. 3 The State filed a petition alleging violation of

      probation based on his new conviction. The court ordered Percifield to execute

      the remaining 1,005 days of this sentence consecutive to his new sentence for

      leaving the scene of an accident.




      1
          Ind. Code § 35-45-2-1(a)(1) (2014).
      2
          Ind. Code § 35-47-4-3(b) (2014).
      3
       Ind. Code § 9-26-1-1 (2014). Following his guilty plea, a Marion County court sentenced Percifield to four
      years for that offense.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-89 | October 9, 2015             Page 2 of 4
                                      Discussion and Decision
[5]   If a trial court finds that a person has violated probation before termination of

      the probationary period, the court may order 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). We review a trial court’s decision for an abuse of discretion.

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


[6]   Percifield contends the court’s imposition of his entire suspended sentence was

      an abuse of the trial court’s discretion because this was his first probation

      violation. As a benefit of the plea agreement Percifield entered, the State did

      not pursue prosecution of Class C felony intimidation. The State was

      compassionate by providing a plea, and the trial court was lenient by ordering

      most of his sentence be served on probation. While on probation, Percifield left

      the scene of an accident which resulted in the death of his uncle and uncle’s

      girlfriend. (Confidential App. at 194. 4) Percifield did not call the police or turn

      himself in.


[7]   From 1997 to 2006, Percifield was convicted of several offenses: Class A

      misdemeanor possession of marijuana, Class A misdemeanor operating while

      intoxicated, Class C misdemeanor illegal consumption, and Class C felony

      battery by means of a deadly weapon. (Id. at 193-94). In light of Percifield’s




      4
       Pursuant to Ind. Administrative Rule 9(G), certain documents are to be excluded from public access and
      placed on green paper in a Confidential Appendix.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-89 | October 9, 2015           Page 3 of 4
      continued criminal behavior after being given leniency by the trial court, we

      find no abuse of discretion in the trial court’s order that Percifield serve 1,005

      days of his previously suspended sentence after his first violation of probation.

      See Ind. Code § 35-38-2-3 (court has the discretion to order defendant to serve

      the remainder of a suspended sentence if defendant violates probation).


                                                Conclusion
[8]   For the foregoing reasons, we affirm the trial court’s order.


[9]   Affirmed.


      Crone, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-89 | October 9, 2015   Page 4 of 4
