Tracy Allen Perry 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 Mar 14 2019, 7:56 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 Megan E. Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tracy Allen Perry, March 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2484 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Hawkins, Appellee-Plaintiff. Judge The Honorable Peggy R. Hart, Magistrate Trial Court Cause No. 49G05-1512-F5-45370

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2484 | March 14, 2019 Page 1 of 5

Case Summary [1] Tracy Perry (“Perry”) admitted that he violated the terms of his home detention

placement by committing a new criminal offense. The trial court revoked

Perry’s home detention and ordered that he serve the balance of his four-year

sentence in the Indiana Department of Correction (“the DOC”). Perry presents

a single issue on appeal: whether the trial court abused its discretion in

imposing the sanction. We affirm.

Facts and Procedural History [2] On December 22, 2015, the State charged Perry with Battery by Means of a

Deadly Weapon, a Level 5 felony. The State alleged that Perry had

intentionally burned Latrice Warren by using a propane torch. On May 19,

2016, Perry pled guilty to the charge against him. He was sentenced to four

years, to be executed on home detention. [3] On June 2, 2016, Marion County Community Corrections (“Community

Corrections”) filed a Notice of Violation alleging that Perry had failed to charge

the battery on his GPS monitoring device on three separate occasions. Perry

admitted to committing the violations and he was continued on home

detention. [4] On August 24, 2016, Community Corrections filed a Notice of Violation

alleging that Perry had been charged with a new criminal offense, had failed to

comply with monetary obligations, and had failed to report to court-ordered

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appointments. Perry admitted to failure to comply with monetary obligations

and the State withdrew the other allegations. Perry was continued on home

detention. [5] On February 2, 2017, Community Corrections filed a Notice of Violation

alleging that Perry left his residence without authorization on two separate

occasions and had failed to maintain contact with Community Corrections and

report to court-ordered appointments. Again, Perry admitted to the violations

and was continued on home detention. [6] On December 12, 2017, Community Corrections filed a Notice of Violation

alleging that Perry had damaged his GPS monitoring device, left his residence

without authorization, was non-compliant with monetary obligations, and

failed to report to Community Corrections. Again, Perry admitted to the

violations and was continued on home detention. [7] On July 21, 2018, Perry was arrested. He was convicted of battery on

September 14, 2018. On September 19, 2018, the State moved to revoke Perry’s

home detention placement and Perry admitted that he had been convicted of

battery while serving his home detention. The trial court revoked Perry’s home

detention placement and ordered that he serve the balance of his four-year term

in the DOC.1 Perry appeals.

1 The trial court calculated Perry’s credit time as 947 actual days served on home detention and an additional 316 days of earned credit time.

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Discussion and Decision [8] “A reviewing court treats a petition to revoke placement in a community

corrections program the same as a petition to revoke probation.” McCauley v.

State, 22 N.E.3d 743, 746 (Ind. Ct. App. 2014). Probation revocation is a two-

step process. First, the court determines whether the terms of probation have

been violated and second, the court determines the appropriate sanctions for the

violation. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). [9] Perry does not challenge the determination that he violated the terms of his

home detention placement. Rather, he argues that the sanction imposed upon

him was unduly harsh given his physical infirmities and his desire to avoid

disruption of his disability income and housing. We review the imposition of

sanctions for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007). An abuse of discretion occurs where the decision is clearly against the

logic and effect of the facts and circumstances before the court. Id. [10] Perry, who has four prior felony convictions and sixteen prior misdemeanor

convictions, was placed on home detention after he pled guilty to burning a

woman with a propane torch. At hearings conducted on June 6, 2016,

November 2, 2016, April 5, 2017, and February 7, 2018, Perry admitted to

successive violations of the terms of his home detention placement. On

September 14, 2018, Perry was again convicted of battery. On September 19,

2018, Perry admitted that conduct. Despite leniency afforded him on numerous

occasions, Perry has continued his pattern of violating the conditions of his

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home detention placement. The trial court’s decision that Perry serve the

remainder of his sentence in the DOC is not contrary to the facts and

circumstances before it.

Conclusion [11] The trial court did not abuse its discretion in revoking Perry’s home detention

and ordering that he serve the remainder of his sentence in the DOC. [12] Affirmed.

Bradford, J., and Brown, J., concur.

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