Lonnie D. Sewell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 19 2019, 9:58 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Evan M. Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lonnie D. Sewell, June 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3026 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Frances C. Gull, Judge Trial Court Cause No. 02D05-1606-F6-634

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019 Page 1 of 7 [1] Contending that the trial court abused its discretion, Lonnie D. Sewell

(“Sewell”) appeals the trial court’s decision to revoke his probation. [2] We affirm.

Facts and Procedural History [3] On August 9, 2016, Sewell pleaded guilty to dealing in a synthetic drug or

lookalike substance,1 a Level 6 felony, and resisting law enforcement,2 a Class A

misdemeanor.,. Tr. Vol. II at 9. He was sentenced to one year and 183 days for

Count I and one year for Count II. Id. at 17. The trial court ordered the

sentences to run concurrently with the 183 days to be executed and the one year

to be suspended. Id. [4] On September 8, 2016, Sewell was ordered to serve the 183 days executed in

the Allen County Work Release Program. Id. at 35. On September 26, 2016,

Sewell’s placement in the work release program was revoked, and Sewell was

ordered to serve 183 days in the Allen County Jail with a year of probation to

follow. Id. at 53, 87. [5] On June 3, 2017, Sewell was arrested on charges of possession of a synthetic

drug or lookalike substance, resisting law enforcement, and driving while

suspended (“June 2017 charges”). Id. at 74. On November 14, 2017, the State

1 See Ind. Code § 35-48-4-10.5(c)(2). 2 See Ind. Code § 35-44.1-3-1(a)(3).

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filed a petition to revoke probation. Id. at 58. Sewell admitted to the

allegations and was placed in the Drug Court program on November 27, 2017.

Id. at 68. On March 19, 2018, Sewell was cited for violation of Drug Court

rules and ordered to serve one night in jail. Id. at 70. [6] Sewell submitted to a drug test on August 21, 2018, which was positive for

cocaine. Tr. Vol. II at 23. Sewell also: (1) failed to submit to drug screens on

August 20, August 27, and August 28; and (2) failed to appear in court on

September 4. Id. Lastly, Sewell was arrested on October 23 and charged with

resisting law enforcement, possession of cocaine, possession of a narcotic drug,

possession of a synthetic drug, and possession of marijuana. Id. [7] The State filed an amended petition to revoke probation on October 29, 2018.

Appellant’s App. Vol. II at 74. This petition included both the allegations from

the arrest around June 2017 charges and that Sewell failed to complete Drug

Court requirements. Id. Sewell admitted to the allegations in the petition at a

hearing on November 5, 2018. Tr. Vol. II at 23. On the same day, Sewell’s

placement in the Drug Court program was revoked. Id. [8] At the November 29, 2018 sentencing hearing, Sewell pleaded guilty to the

June 2017 charges. Id. at 28. Sewell admitted that he was an addict and that he

had relapsed. Id. at 32. Sewell requested alternative sentencing, but he was

ineligible because of his pending charges. Id. In addition to sentencing him on

the June 2017 charges, the trial court ordered Sewell’s suspended sentence

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revoked and ordered him to serve one year in DOC less the time served

awaiting resolution of the case. Id. Sewell now appeals his sentence.

Discussion and Decision [9] Sewell argues that his revocation of probation and subsequent executed

sentence in DOC were inappropriate in light of the nature of the offense and the

character of the offender. Appellant’s Br. at 18. A trial court’s action in a post-

sentence probation violation proceeding is not a criminal sentence as articulated

in Appellate Rule 7(B). Wooten v. State, 946 N.E.2d 616, 622 (Ind. Ct. App.

2011) (citing Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s

action in a post-sentence probation violation proceeding is not a criminal

sentence as contemplated by the rule. The review and revise remedy of App. R.

7(B) is not available.”)), trans. denied. Rather than the independent review

afforded sentences under Appellate Rule 7(B), a trial court’s sentencing

decisions for probation violations are reviewed for an abuse of discretion. Jones,

885 N.E.2d at 1290. An abuse of discretion occurs where the discretion is

clearly against the logic and effect of the facts. Knecht v. State, 85 N.E.3d 829,

840 (Ind. Ct. App. 2017). [10] “‘Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188. (Ind. 2007)), trans.

denied. “Courts in probation revocation hearings ‘may consider any relevant

evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

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State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

court to determine the conditions of a defendant’s probation and to revoke

probation if the conditions are violated.” Id. This court has stated that “all

probation requires ‘strict compliance’” because once the trial court extends this

grace and sets its terms and conditions, the probationer is expected to comply

with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

(Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

Id. If a violation is proven, the trial court must determine if the violation

warrants revocation of the probation. Sullivan v. State, 56 N.E.3d 1157, 1160

(Ind. Ct. App. 2016). Violating one condition of probation is enough to support

a probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). [11] If the trial court concludes that the probationer has violated the terms of his

probation, the court may: (1) continue the probation, with or without

modifying or enlarging the conditions; (2) extend the probationary period for up

to one year; or (3) revoke the probation and order all or part of the sentence to

be executed. Ind. Code § 35-38-2-3(h). [12] Sewell argues that revoking his probation was inappropriate given the

mitigating factors. Appellant’s Br. at 21. Revoking Sewell’s probation was not

an abuse of discretion; indeed, revocation of probation is one of the options

prescribed by the statute. See I.C. § 35-38-2-3(h)(3). [13] Here, the trial court noted many aggravating factors which contributed to its

ordering Sewell’s suspended sentence to be served in DOC and noted that many

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rehabilitative measures that had been offered failed. Appellant’s App. Vol. I at

100. In addition, Sewell was not eligible for alternative sentencing because of

his pending charges. Tr. Vol. II at 34. The trial court did not abuse its

discretion in ordering Sewell to DOC. [14] Sewell’s probation required that he obey the law and maintain good behavior.

While on probation, Sewell: (1) pleaded guilty to possession of a synthetic

drug, resisting law enforcement, and driving while suspended; and (2) tested

positive for cocaine and failed to submit to three drug screens. Tr. Vol. II at 22-

23. Sewell had pending charges from his arrest in October 2018 against him at

the time of sentencing that were also from his behavior while on probation. Id.

at 34. These violations of Sewell’s probation were sufficient to revoke

probation. [15] At the sentencing hearing, the trial court noted the following aggravating

factors: Sewell’s juvenile record, his adult criminal record, and his failed efforts

at rehabilitation. Appellant’s App. Vol. I at 100. These failed efforts at

rehabilitation consisted of parole, Re-Entry Court, Work Release, Drug Court,

time served in DOC, and multiple treatment attempts. Id. Despite being

enrolled in all these rehabilitative programs, Sewell remained a “High” risk to

reoffend according to the IRAS. Id. at 91. The trial court must decide on what

action to take following a violation of probation. Here, Sewell violated his

probation on two different occasions by reoffending. Id. at 7, 74. Therefore,

the trial court did not abuse its discretion by ordering Sewell to serve all of his

previously suspended sentence in DOC.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019 Page 6 of 7 [16] Affirmed.

Vaidik, C.J., and Altice, J., concur.

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