Douglas Flagle v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 29 2017, 9:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas Flagle, August 29, 2017 Appellant-Defendant, Court of Appeals Case No. 43A05-1704-CR-875 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable Joe V. Sutton, Appellee-Plaintiff. Judge Trial Court Cause No. 43D03-0907-FC-116

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Statement of the Case [1] After Douglas Flagle (“Flagle”) admitted that he had violated his probation, the

trial court revoked five and one-half years of his six-year suspended sentence.

Flagle now contends that the trial court abused its discretion in revoking five

and one-half years of his suspended sentence. Finding no error, we affirm the

trial court’s judgment. [2] We affirm.

Issue Whether the trial court abused its discretion in revoking Flagle’s suspended sentence.

Facts [3] In July 2009, the State charged Flagle in Kosciusko County with non-support of

a dependent as a Class C felony. The information alleged that Flagle had

knowingly or intentionally failed to provide support to his dependent child,

S.F., and that the amount of unpaid support was at least $15,000. In November

2009, Flagle pled guilty to the charged offense pursuant to a written plea

agreement. Flagle agreed that the amount of his unpaid child support was

$21,175.00. Pursuant to the terms of the plea agreement, Flagle had ninety

days to reduce his child support arrearage. If Flagle reduced his arrearage to

$14,499.99 or less at the time of the sentencing hearing, judgment of conviction

would be entered as a Class D felony and Flagle would be sentenced to a three-

year suspended sentence. However, if Flagle’s arrearage was $15,000 or higher

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at the time of sentencing, judgment of conviction would be entered as a Class C

felony and he would be sentenced to eight years in the Department of

Correction. Two years of the eight-year sentence would be executed and six

years would be suspended to probation. The plea agreement further provided

that Flagle would not commit any criminal offenses. At the guilty plea hearing,

the trial court took the plea agreement under advisement and scheduled a

sentencing hearing for February 2010. Flagle was released from custody on his

own recognizance pending the sentencing hearing. [4] Flagle failed to appear at the February 2010 sentencing hearing and therefore

failed to review or sign the terms and conditions of his probation. A warrant

was subsequently issued for his arrest. In July 2011, the Kosciusko County trial

court was informed that Flagle, who had just been sentenced for seven felony

convictions, was in custody in Elkhart County. The Kosciusko County trial

court rescheduled the hearing for which Flagle had failed to appear, and in

August 2011, the trial court approved the Kosciusko County plea agreement

and imposed a judgment of conviction for Class C felony non-support of a

dependent. Pursuant to the terms of the plea agreement, the trial court also

sentenced Flagle to eight (8) years, with two (2) years executed and six (6) years

suspended to probation. This sentence was ordered to run consecutively to the

sentence for the Elkhart County convictions. [5] At some point in 2014, after he had served the executed portion of his sentence,

Flagle was placed in Elkhart County’s work-release program. Flagle had

apparently been serving in the work-release program for almost a year when, in

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April 2015, he failed to return to the work-release facility. In May 2015,

Elkhart County charged Flagle with Level 6 felony failure to return to lawful

detention. Flagle turned himself in to police in Michigan five months later. [6] Based upon that charge, in February 2016, Flagle’s Kosciusko County

probation officer filed a petition to revoke Flagel’s probation for the 2011 non-

support of a dependent conviction. The petition also alleged that Flagle had

violated his probation by failing to sign the terms and conditions of his

Kosciusko County probation. [7] At the March 2017 revocation hearing, Flagle explained that he had not

reported to the probation department to review or sign the terms and conditions

of his probation because he “was under the understanding that the reporting to

the probation department was after that was all completed.” (Tr. 14). He

stated that he did “not have an excuse for not reporting other than (inaudible).”

(Tr. 14). Flagle further explained that he had failed to return to Elkhart

County’s work release program because he had “had a little rebellious period

and thought [he] would take advantage of it.” (Tr. 21). The evidence further

revealed that Flagle’s child support arrearage was $51,407.08, and that his last

child support payment in March 2016 had been for $17.00. [8] Also at the hearing, the State argued as follows:

[In February 2010], Mr. Flagle failed to appear for sentencing. The Court at that time issued a warrant for his arrest with [a] $100,000.00 surety bond. It appears that his disregard is not unique in this particular case based upon his own admission that

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he absconded for five months from . . . Community Corrections and actually had to turn himself back into Niles, Michigan. Um, the child support arrearage, as far as I know, has not been substantially diminished if at all. It was $57,000.00 at the time of his sentencing. We would ask the Court to revoke his probation, discharge him unsatisfactorily and order him to serve the six years, less an appropriate credit that the Court determines under the circumstances, um, for his acceptance of responsibility and his admission at an early stage of these proceedings.

(Tr. 23). [9] The trial court gave Flagle “a six[-]month cut for just being upfront and

straight” about his probation violation. (Tr. 26). The trial court further revoked

five and one-half years of Flagle’s previously suspended six-year sentence and

ordered Flagle to serve this time in the Department of Correction. Flagle

appeals.

Decision [10] Flagle argues that the trial court abused its discretion in revoking five and one-

half years of his previously suspended sentence. He specifically contends that

the trial court “impos[ed] a particularly severe sentence considering the

relatively minor nature of the probation violation.” (Flagle’s Br. 11). [11] Upon determining that a probationer has violated a condition 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.” IND. CODE § 35-38-2-3(h)(3).

“Once a trial court has exercised its grace by ordering probation rather than

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incarceration, the judge should have considerable leeway in deciding how to

proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “If this discretion

were not given to trial courts and sentences were scrutinized too severely on

appeal, trial judges might be less inclined to order probation to future

defendants.” Id. As a result, we review a trial court’s sentencing decision from

a probation revocation for an abuse of discretion. Id. An abuse of discretion

occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id. [12] The record reveals that the trial court had an ample basis for its decision to

revoke five and one-half years of Flagle’s previously suspended sentence.

Significantly, in 2009, Flagle pled guilty to Class C felony non-support of a

dependent. After being released on his own recognizance, he failed to both

appear at a scheduled hearing and sign the terms and conditions of his

probation. Over a year later, after being sentenced for seven felony convictions

in a different county, Flagle attended the hearing in Kosciusko County, where

he was sentenced to eight years with six years suspended. Thereafter, while

serving in an Elkhart County work-release program, Flagle failed to return to

the work-release facility. He was subsequently charged with another felony for

failing to return to lawful detention. Five months later, he turned himself in to

police in another state. At the time of the probation revocation hearing,

Flagle’s child support arrearage was over $50,000, and he had not made a

payment in the past year. Based on this evidence, we conclude that the trial

court did not abuse its discretion when it revoked five and one-half years of

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Flagle’s previously suspended sentence. See Jones v. State, 838 N.E.2d 1146,

1149 (Ind. Ct. App. 2005) (holding that the trial court did not abuse its

discretion in ordering Jones to serve thirty years of his previously-suspended

sentence after he violated the terms and conditions of his probation). 1 [13] Affirmed.

Riley, J., and Robb, J., concur.

1 Flagle further argues that even if the trial court did not abuse its discretion in ordering him to serve five and one-half years of his previously suspended sentence, his “placement at the Department of Corrections . . . is not appropriate.” (Flagle’s Br. 13). However, the two cases that he cites in support of this argument both involve direct appeals of a sentence. The Indiana Supreme Court has previously explained that Indiana Appellate Rule 7(B)’s inappropriate analysis “is not the correct standard to apply when reviewing a trial court’s actions in a post-sentence probation violation proceeding.” Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). We therefore do not address this argument.

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