MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Feb 28 2017, 7:36 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard Walker                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Breon M. Davenport,                                      February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1604-CR-954
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark K. Dudley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C06-1505-F2-791



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017    Page 1 of 5
[1]   Breon M. Davenport (“Davenport”) appeals the Madison Circuit Court’s order

      revoking his probation and ordering him to serve his two-year placement in in-

      home detention executed in the Department of Correction.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On May 27, 2015, seventeen-year-old Davenport and his accomplices stole

      marijuana from the victim, and during the robbery, Davenport’s accomplice

      shot the victim in the hand and thigh. The next day, Davenport was charged as

      an adult with Level 2 felony aiding, inducing, or causing robbery resulting in

      serious bodily injury, Level 3 felony aiding, inducing, or causing armed

      robbery, and Level 3 felony aggravated battery.


[4]   On October 20, 2015, Davenport pleaded guilty to Level 5 felony aiding,

      inducing, or causing robbery, a lesser included offense of the Level 2 felony

      robbery charge, in exchange for dismissal of the remaining charges. On

      November 17, 2015, Davenport was ordered to serve a five-year sentence with

      three years suspended to probation. The remaining two years were ordered

      executed in in-home detention.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017   Page 2 of 5
[5]   After serving approximately thirty days in in-home detention, Davenport

      removed his ankle bracelet1, and his whereabouts became unknown. Therefore,

      on January 6, 2016, a warrant was issued for his arrest. Davenport was arrested

      on February 9, 2016.

[6]   Davenport was taken to the Madison County Youth Center. While the center

      was processing Davenport’s arrest, Davenport jumped over a counter, grabbed

      a fire extinguisher, and ran into the security booth. The door automatically

      locked behind Davenport. A Youth Center employee was trapped inside the

      booth with Davenport, and he warned her not to open the door. Using the fire

      extinguisher, Davenport smashed the security automated systems electronic

      control panel, which controlled the locks for the facility, and damaged two

      window panes. The incident continued for approximately ten minutes until law

      enforcement personnel were able to calm Davenport and remove him from the

      security booth.


[7]   At the probation revocation hearing, Davenport admitted that he took

      substantial steps toward commission of a new criminal offense, i.e. Level 6

      felony escape. The trial court also found that he “took substantial steps in the

      commission of the new criminal offense of Criminal Mischief, Class A




      1
        The State also alleged that Davenport committed theft of the ankle bracelet. However, at the revocation
      hearing, Davenport stated that he returned the device to the appropriate authority. The trial court found that
      the State failed to prove that Davenport committed theft.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017             Page 3 of 5
       misdemeanor” for the acts Davenport committed on February 9, 2016 during

       intake at the Youth Center.

[8]    After concluding that Davenport violated terms of his probation, the court

       observed that he “received a break when [he] got sentenced to In-Home as

       opposed to the DOC for a Level 5 felony. That was a heck of a break. And by

       your actions you’ve lost that break . . . .” Tr. p. 59. Therefore, the trial court

       revoked Davenport’s placement in in-home detention and ordered him to serve

       his two-year in-home detention executed in the Department of Correction.

       Davenport was given credit for time served. He now appeals.


                                      Discussion and Decision

[9]    Trial courts have the authority to place convicted persons in home detention

       rather than in the Department of Correction. State v. Vanderkolk, 32 N.E.3d 775,

       776-77 (Ind. 2015). “Home detention may be imposed as either a condition of

       probation or as an alternative placement that is part of an offender'’ community

       corrections program.” Id. at 777. Either way, the placement is a conditional

       liberty given at the discretion of the trial court, and we review the trial court’s

       revocation thereof under the same standard. Id.


[10]   Our standard for reviewing a probation revocation is well settled.

               Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. The trial court
               determines the conditions of probation and may revoke
               probation if the conditions are violated. Once a trial court has
               exercised its grace by ordering probation rather than

       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017   Page 4 of 5
               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. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.


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


[11]   Davenport received a substantial benefit from his plea agreement and a lenient

       sentence for the Level 5 felony robbery conviction. He was given the opportunity

       to spend two years in in-home detention instead of the Department of

       Correction. However, he failed to take advantage of the leniency afforded him.


[12]   After serving approximately thirty days of In-Home Detention, Davenport cut

       off his ankle monitor and escaped. When he was arrested over a month later,

       he locked himself and a Youth Center employee in a security booth, and caused

       over $3,000 worth of damage to the Youth Center.


[13]   For these reasons, we conclude that the trial court acted within its discretion

       when it revoked Davenport’s probation and ordered him to serve his two-year

       placement in in-home detention executed in the Department of Correction.


[14]   Affirmed.


       Baker, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-954 | February 28, 2017   Page 5 of 5
