MEMORANDUM DECISION                                                                FILED
                                                                               Apr 21 2016, 7:49 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court

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
Matthew J. McGovern                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon S. Spalding,                                     April 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1510-CR-1607
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         22D03-0904-FA-964



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016              Page 1 of 8
[1]   After admitting that he violated the terms of his probation, the trial court

      revoked the entirety of Brandon S. Spalding’s suspended, three-year sentence.

      Spalding argues that such amounted to an abuse of discretion.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On April 20, 2009, Spalding and three accomplices kicked in Tyson Brownlee’s

      apartment door, struck him several times, and then Spalding and another shot

      at him with handguns as he ran away. On April 22, 2009, the State charged

      Spalding with attempted murder and burglary resulting in bodily injury, both

      Class A felonies. On August 12, 2009, Spalding entered into a plea agreement

      with the State, whereby he agreed to plead guilty to an amended charge of

      criminal recklessness as a Class C felony. The State agreed to dismiss the

      attempted murder charge and further agreed that the sentence imposed would

      be eight years, with four years suspended to supervised probation. The trial

      court sentenced Spalding accordingly on September 14, 2009.


[4]   The State filed its first petition to revoke Spalding’s probation on December 9,

      2010, alleging that he had failed to maintain good behavior and that he had

      committed another crime. On February 9, 2011, Spalding and the State entered

      into a plea agreement in another criminal case in which Spalding agreed to

      plead guilty to two counts of Class D felony perjury. In exchange, the State

      agreed to an aggregate three-year sentence and to dismiss the petition to revoke

      probation in this case.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 2 of 8
[5]   Spalding was released to probation on October 29, 2012. On January 1, 2013,

      he was arrested for possession of a controlled substance, maintaining a

      common nuisance, dealing in marijuana, and possession of marijuana. The

      State filed a second petition to revoke Spalding’s probation on February 26,

      2013, for failing to behave, committing new crimes (based on January 1, 2013

      arrest), using alcohol and/or drugs, and failing to pay fees. At a probation

      revocation hearing on August 14, 2013, Spalding admitted to violating his

      probation and the court modified his suspended sentence to four years with one

      year of home detention and three years suspended to probation.


[6]   Spalding started home detention on August 27, 2013. In September and

      October, he went to unauthorized locations and failed to attend a Thinking for

      Change class. He also failed a drug screen on September 20, 2013, testing

      positive for opiates and marijuana. Based on the foregoing, the State filed a

      petition to revoke Spalding’s home detention on October 9, 2013. Following a

      hearing on November 20, 2013, the trial court revoked Spalding’s placement on

      home detention and ordered him to serve one year in the Department of

      Correction (DOC) followed by three years of probation.


[7]   The State filed another petition to revoke probation on July 31, 2014. The State

      amended its petition on October 3, 2014, October 23, 2014, and January 16,

      2015. In the January 16 amended petition, the State alleged that Spalding

      violated the following terms of his probation: (1) failure to maintain good

      behavior; (2) committing criminal acts in Kentucky; (3) failure to report to

      probation; (4) failure to comply with community service; (5) failure to comply

      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 3 of 8
      with Thinking for a Change; (6) use of alcohol and/or controlled substances not

      prescribed by a physician; and (7) failure to pay fees. The State filed a fourth

      amended notice of probation violation on June 24, 2015, which recounted in

      more detail the allegations in the January 16 amended petition. Specifically,

      the fourth amended notice detailed that Spalding had been arrested in Kentucky

      in one case for possession of marijuana, in a second case for possession of a

      controlled substance in the second degree, in a third case for possession of a

      controlled substance in the first degree and criminal possession of a forged

      instrument, and in a fourth case for giving an officer a false name and identity

      theft. It was further noted that Spalding had a positive screen for drugs on June

      9, July 18, August 25, and October 14, 2014.


[8]   The trial court held a probation revocation and dispositional hearing on

      September 23, 2015, at which Spalding admitted to all of the alleged violations

      of his probation as outlined in the fourth amended notice of probation

      violation. With regard to disposition, Spalding’s probation officer testified,

      summarizing his past conduct and his unwillingness to initiate treatment for

      drugs and alcohol. She further testified that Spalding is not “a candidate for

      probation” because he has “been unable to comply with the conditions of the

      probation.” Transcript at 64. A program coordinator with Community

      Corrections who was familiar with Spalding testified that Spalding would not

      be successful in her program because he does not have the “drive to do better”

      and is not ready to change his thinking. Id. at 73. At the conclusion of the




      Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 4 of 8
       hearing, the trial court revoked Spalding’s probation and ordered him to serve

       his entire three-year suspended sentence in the DOC. Spalding now appeals.


                                           Discussion & Decision


[9]    Spalding argues that the trial court abused its discretion when it ordered him to

       serve his three-year suspended sentence in the DOC. Probation is a matter of

       grace left to trial court discretion, not a right to which a criminal defendant is

       entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans.

       denied. Where a trial court has exercised its grace by granting a defendant

       probation in lieu of incarceration, it has considerable leeway in deciding how to

       proceed when the defendant then violates the conditions of his probation.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the sanction imposed by

       the trial court upon a finding of a probation violation is reviewed on appeal for

       an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App.

       2013), trans. denied. An abuse of discretion occurs where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Id. Although the court has several alternative sanctions it

       may impose where it has found that a defendant has violated his probation, one

       of those sanctions is to order execution of all or part of the sentence that was

       suspended at the time of initial sentencing. Id.; see also Ind. Code § 35-38-2-

       3(h)(3).


[10]   In arguing that the trial court abused its discretion in ordering that he serve the

       entirety of his suspended sentence in the DOC, Spalding asserts that the trial


       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 5 of 8
       court did not adequately appreciate that he “accepted full responsibility for his

       actions by admitting his violations.” Appellant’s Brief at 12. He also maintains

       that the trial court did not afford sufficient mitigating weight to his assertion

       that having recently been blessed with two children, he was now “absolutely

       willing to throw in the white flag and change [his] life.” Transcript at 85.


[11]   Here, the record reflects that Spalding’s daughter was born in 2013 and that his

       son was born in 2015. As appropriately noted by the trial court, Spalding’s

       conduct since the birth of his children belies his assertion that he has changed

       his outlook on life and wants to move away from his destructive behavior. To

       be sure, even after the birth of his daughter, Spalding failed numerous drug

       screens and did not initiate substance abuse treatment. Spalding was also

       arrested four times for additional offenses, the most recent being shortly after

       the birth of his son. Clearly, his children have not provided sufficient incentive

       for Spalding to change his behavior.


[12]   Spalding also directs us to a general sentencing standard that requires a trial

       court to consider a defendant’s willingness to plead guilty as a mitigating

       circumstance. See, e.g., Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995). As

       Spalding acknowledges, however, “[t]his requirement has never been extended

       to an admission in a probation revocation case.” Appellant’s Brief at 12.

       Nonetheless, in light of this consideration, he requests that we reverse the trial

       court’s revocation order and remand with instructions to reinstate one year of

       his suspended sentence.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 6 of 8
[13]   The principle that Spalding borrows from criminal sentencing is a poor fit for

       probation revocation proceedings.1 In any event, we note that even in criminal

       sentencing, the trial court is required to identify only significant mitigating

       circumstances. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218. A guilty plea is not always a significant mitigator. See

       Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999). To be sure, “a guilty plea

       does not rise to the level of significant mitigation where the defendant has

       received a substantial benefit from the plea or where the evidence against him is

       such that the decision to plead guilty is merely a pragmatic one.” Powell v. State,

       895 N.E.2d 1259, 1262-63 (Ind. Ct. App. 2008) (citing Wells v. State, 836 N.E.2d

       475, 479 (Ind. Ct. App. 2005), trans. denied.


[14]   Here, there was overwhelming evidence to support the revocation of Spalding’s

       probation. Thus, his decision to admit to the probation violations was likely

       pragmatic and not indicative that he was taking responsibility for his actions.

       Rather, like his claim that his children have changed him, his decision was most

       likely an attempt to gain favor with the court. Thus, even if the sentencing




       1
         In the criminal context, where the State has to prove the defendant’s guilt beyond a reasonable doubt, a
       defendant who pleads guilty “sav[es] the court time and resources and spar[es] the victim’s family from
       enduring a full-blown trial.” Scheckel v. State, 655 N.E.2d at 511. Thus, by pleading guilty, the defendant
       extends a substantial benefit to the State and in return, a defendant deserves to have some mitigating weight
       extended to his guilty plea. Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005). In a probation revocation
       proceeding, however, the State only has to prove a violation by a preponderance of the evidence. Heaton v.
       State, 984 N.E.2d 614, 617 (Ind. 2013). Thus, a probationer who admits his violation extends a less
       significant benefit to the State.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016              Page 7 of 8
       standard were applicable in a probation revocation proceeding, Spalding would

       not benefit therefrom.


[15]   Spalding has been afforded leniency and other benefits relating to previous

       probation violations in this case and yet he squandered them by continuing to

       use drugs and commit crimes, in addition to violating other terms of his

       probation. Spalding has not demonstrated that the trial court abused its

       discretion in ordering that he serve his three-year suspended sentence in the

       DOC.


[16]   Judgment affirmed.


[17]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1510-CR-1607 | April 21, 2016   Page 8 of 8
