MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Jun 07 2018, 7:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Kokomo, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Davenport,                                        June 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1712-CR-2983
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         34C01-1008-FD-170



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018          Page 1 of 5
                                          Case Summary
[1]   Steven Davenport appeals the trial court’s order requiring him to serve the

      remainder of his suspended sentence in the Department of Correction for

      violating his probation. Because Davenport had violated probation on three

      previous occasions and was given multiple chances to no avail, we find no

      abuse of discretion and affirm the trial court.



                            Facts and Procedural History
[2]   Davenport pled guilty to child solicitation, and the trial court imposed a

      sentence of three years, with one year executed and two years suspended to

      probation.


[3]   On October 5, 2017, the State filed a Petition to Revoke Suspended Sentence,

      alleging, among other things, that Davenport violated his probation by failing to

      report to the probation department on October 2. Tr. Vol. II pp. 11-12. This

      was the sixth petition to revoke Davenport’s probation that the State had filed

      in this case. Two of the earlier petitions were dismissed, one because he pled

      guilty to the crime that led to the filing of the petition. The other three petitions

      resulted in Davenport serving some of his suspended sentence. See Appellant’s

      App. Vol. II pp. 35-36, 41-42. At the hearing, Davenport’s probation officer

      testified that Davenport was required to check-in daily at the courthouse and to

      report to her once a week. Davenport admitted that he did not report on

      October 2; however, he claimed that neck pain stemming from a broken jaw


      Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018   Page 2 of 5
      that he sustained in May 2017 “prevented [him] from walking to probation, to

      the courthouse.” Tr. Vol. II p. 27. Davenport’s probation officer testified that

      Davenport had never told her that his injury prevented him from reporting to

      probation. Id. at 17.


[4]   The trial court found that Davenport violated his probation by failing to report

      on October 2:


              Mr. Davenport himself has admitted that he[ ] failed to [report on
              October 2]. I don’t think any of the reasons that he’s given here
              or other evidence he’s submitted is a justifiable reason why he
              couldn’t report, couldn’t do the check-in . . . . You know, all this
              issue about, you know, the injuries that he suffered and so on and
              so forth, perhaps the Court would be inclined to be more lenient
              if this was the first time he had missed. It is not . . . . I don’t
              believe Mr. Davenport is able to comply with the Rules of
              Probation. I’m going to find just on number one, his failure to
              report, which he was required to do daily, that he failed to do so.
              He’s had a history of non-compliance in this case. Find the
              Petition to Revoke Suspended Sentence granted.


      Id. at 27-28. The trial court ordered him to serve the balance of his suspended

      sentence, which amounted to 460 days, in the DOC.


[5]   Davenport now appeals.



                                 Discussion and Decision
[6]   Probation revocation is a two-step process. First, the trial court must determine

      that a violation of a condition of probation actually occurred. Woods v. State,


      Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018   Page 3 of 5
      892 N.E.2d 637, 640 (Ind. 2008). Second, the court must determine if the

      violation warrants revocation of probation. Id. When a probationer admits to

      the violation, the court can then proceed to the second step of the inquiry and

      determine whether the violation warrants revocation. Id. The decision to

      revoke probation lies within the sound discretion of the trial court, and if there

      is substantial evidence of probative value to support the trial court’s decision

      that a defendant has violated a term of probation, the reviewing court will

      affirm its decision to revoke probation. Id. at 639-40.


[7]   Davenport concedes that he violated his probation. Appellant’s Br. p. 5. He

      argues, however, that the trial court abused its discretion in sentencing him to

      the balance of his suspended sentence in the DOC because his violation was

      attributable to his medical condition. Id. at 6. He asks us to order the balance

      of his suspended sentence to be served on community corrections through work

      release, in-home detention, or other community-based monitoring because it

      would “increase the level of supervision he faces within the community.” Id. at

      7.


[8]   However, the trial court has already given Davenport multiple chances. He has

      violated his probation in this case three previous times, served small periods of

      time for these violations, and has returned to probation, only to violate it again.

      Therefore, in light of the opportunities that Davenport has been given in this

      case, the trial court did not abuse its discretion in ordering Davenport to serve

      the balance of his suspended sentence in the DOC, as opposed to on

      community corrections, for violating probation for a fourth time in this case.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018   Page 4 of 5
[9]   Affirmed.


      Barnes, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 34A04-1712-CR-2983 | June 7, 2018   Page 5 of 5
