Edward Flynn v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 28 2016, 8:46 am

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 Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edward Flynn, November 28, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1605-CR-1027 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1101-FB-8, 27D02-1601-F6- 4

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 1 of 6 [1] Edward Flynn admitted that he violated the terms of his probation by

committing new criminal offenses. On appeal, he argues that the trial court

abused its discretion in ordering that he serve 2 years and 333 days of his

previously suspended six-year sentence. [2] We affirm.

Facts & Procedural History [3] On September 12, 2011, Flynn pled guilty to two counts of robbery as Class C

felonies under Cause No. 27D02-1101-FB-8 (FB-8). The trial court sentenced

him to an aggregate term of ten years with four years served in the Department

of Correction (DOC) and six years suspended to probation. [4] On July 12, 2015, while on probation for his convictions in FB-8, Flynn was

charged under Cause No. 27H01-1503-CM-113 (CM-113) with two counts of

Class A misdemeanor domestic battery, and ultimately pled guilty to one count.

The trial court withheld judgment. [5] On January 3, 2016, while still on probation for his convictions in FB-8, Flynn

battered his wife of one year, Melissa Craig, and her five-year-old son. Flynn

was arrested and subsequently charged under Cause No. 27D02-1601-F6-4 (F6-

4) with domestic battery in the presence of a child, a Level 6 felony, and battery

on a child less than 14 years of age, a Level 6 felony. The trial court also issued

a no-contact order in favor of Craig and her three children. Between January

15 and February 29, 2016, Flynn made 169 completed phone calls from jail to

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Craig’s phone number. At the sentencing hearing, Craig admitted that Flynn

had spoken to her and her five-year-old son. Based upon these telephone calls,

the State amended the charging information in F6-4 to add three counts of

Class A misdemeanor invasion of privacy. [6] On January 8, 2016, the State filed a petition to revoke Flynn’s probation under

FB-8 based on the commission of additional crimes under CM-113 and F6-4.

On March 4, 2016, Flynn pled guilty under F6-4 to the three counts of invasion

of privacy, and the State dismissed the domestic battery and battery charges.

Flynn also admitted to violating his probation under FB-8. At the sentencing

hearing, Flynn presented testimony from his wife and seventeen-year-old step-

son regarding the hardship incarceration would pose on his family. Flynn’s

adoptive mother also testified about his rough childhood and that Flynn had

been diagnosed and treated for mental health problems. Thereafter, the trial

court sentenced Flynn to one year suspended to supervised probation on each

of the invasion of privacy convictions and ordered such sentences to be served

consecutive to the sentence in FB-8. With regard to the probation violation, the

trial court ordered Flynn committed to the DOC for 2 years and 333 days of his

remaining suspended sentence in FB-8. Flynn now appeals. Additional facts

will be provided as necessary.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 3 of 6 [7] Flynn argues that the trial court abused its discretion when it ordered him to

serve 2 years and 333 days of his previously suspended sentence in the DOC as

a result of his probation violation. [8] 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. [9] 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). In doing so, trial courts are

not required to balance aggravating and mitigating circumstances. Treece v.

State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 4 of 6 [10] In arguing that the trial court abused its discretion by failing to consider several

of his proffered mitigating circumstances,1 Flynn relies upon Anglemyer v. State,

868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. However,

as we have held before, Anglemyer “applies to the imposition of an initial

sentence—not a sentence imposed following the revocation of probation.”

Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009). Flynn has cited no

other authority that requires a trial court to give credence to a defendant’s

proffered mitigating circumstances in deciding its sentencing disposition

following a revocation of probation.2 [11] Here, the trial court reinstated a portion of an already-imposed sentence, which

Flynn cannot collaterally attack. See Stephens v. State, 818 N.E.2d 936, 939 (Ind.

2004) (observing that a defendant cannot collaterally attack a sentence on

appeal from a probation revocation). Moreover, we note that the trial court

was authorized by statute to order all of Flynn’s remaining sentence executed.

Instead, the court imposed less than half of the remaining suspended sentence.

1 Flynn’s asserted mitigating factors were that incarceration would present a hardship on his family, that he had a difficult childhood, that he had been diagnosed with mental health problems, and that his crime neither caused nor threatened serious harm to persons or property. 2 Even under the Anglemyer standard, a trial court is required to identify only those mitigating circumstances it finds significant. 868 N.E.2d at 490. We note that the trial court expressly indicated it had reviewed the sentencing submission Flynn filed with the court in which he set forth his proffered mitigating factors. We further note that the trial court set out Flynn’s sentence in F6-4 and FB-8 immediately following his evidence in support of his proffered mitigating factors. Under these circumstances, it can be inferred that the trial court did not find these mitigating circumstances to be significant.

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Flynn has not shown that the trial court abused its discretion in ordering that he

serve 2 years and 333 days of his previously suspended sentence. [12] Judgment affirmed. [13] Bradford, J., and Pyle, J., concur.

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