David B. Adams v. State of Indiana (NFP)
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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: DAVID W. STONE IV Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana FILED IN THE COURT OF APPEALS OF INDIANA Dec 31 2009, 9:49 am CLERK of the supreme court, court of appeals and tax court DAVID B. ADAMS, Appellant- Respondent, vs. STATE OF INDIANA, Appellee- Petitioner, ) ) ) ) ) ) ) ) ) No. 48A04-0909-CR-543 APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Fredrick R. Spencer, Judge Cause No. 48C01-0505-FC-235 48C01-0606-FC-231 December 31, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION ROBB, Judge Case Summary and Issues David Adams appeals the trial court s order revoking his probation and ordering him to serve the previously suspended portions of two sentences with the Indiana Department of Correction ( DOC ). Adams raises one issue for our review, which we restate as whether the trial court abused its discretion in ordering Adams to serve the entirety of his previously suspended sentences. Concluding the trial court did not abuse its discretion, we affirm. Facts and Procedural History The State charged Adams in two separate criminal cases, in June 2005 and June 2006 respectively. In cause 48C01-0506-FC-235 ( case 235 ), the State charged Adams with burglary, a Class C felony, and resisting law enforcement, a Class A misdemeanor. In cause 48C01-0606-FC-231 ( case 231 ), the State charged Adams with burglary, a Class C felony, criminal gang activity, a Class D felony, and resisting law enforcement, a Class A misdemeanor. Adams pled guilty to all the charges in both cases, and the trial court sentenced Adams on September 6, 2006. In case 235, the trial court imposed an aggregate sentence of four years with two years suspended to probation. In case 231, the trial court likewise imposed an aggregate sentence of four years with two years suspended to probation. The trial court ordered the sentences in the two cases to run consecutively to each other and the executed time to be served with the DOC. Adams was released by the DOC on February 3, 2009, to begin serving the probationary period of his sentences. In the early morning of May 26, 2009, a security guard at the Mounds Mall (the Mall ) observed Adams exiting the Mall long after it had 2 closed for the night. Two Anderson Police Department officers responded to the scene and observed Adams running from the Mall. The officers identified themselves as officers and told Adams to stop, but Adams continued running about seventy yards before being apprehended. Transcript at 54. On May 28, 2009, the State filed a petition to revoke Adams s probation in both cases based upon the allegations Adams broke into the Mall with the intent to commit a felony and resisted law enforcement. The trial court held a hearing on the probation violations on June 22, 2009, and found Adams violated the terms of his probation by breaking into the Mall with the intent to commit a felony. The trial court revoked Adams s probation and ordered him to serve the entirety of the previously suspended portions of his sentences with the DOC, an aggregate term of four years, with credit for twenty-eight days of pre-hearing confinement. Adams now appeals. Discussion and Decision A trial court s sentencing decisions for violations of probation are reviewed for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs where the trial court s decision is clearly against the logic and effect of the facts and circumstances. Id. Under Indiana Code section 35-38-2-3(g)(3), if a revocation petition is filed within the defendant s probationary period and the trial court finds the defendant has violated any terms of probation, the trial court may [o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing. Adams does not dispute the facts adduced at the probation revocation hearing or the trial court s finding he violated the terms of his probation. Therefore, the 3 trial court acted within the bounds of its discretion when it ordered Adams to serve the entirety of the previously suspended portions of his sentences. However, Adams argues the trial court should have ordered execution of only part of his suspended sentences and that it abused its discretion by not explicitly considering alternatives to full revocation. A trial court exercising its discretion to order execution of a suspended sentence or lesser sanctions need not demonstrate on the record that it considered alternatives to incarceration. Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996) (citing Black v. Romano, 471 U.S. 606 (1985)). Therefore, Adams s argument fails. Conclusion The trial court did not abuse its discretion in ordering Adams to serve the entirety of the previously suspended portions of his sentences. Affirmed. BAKER, C.J., and BAILEY, J., concur. 4
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