Eldridge Fisher, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Bradford, Judge.

Case Summary

[1] In 2013, Eldridge Fisher was found guilty of Class B felony cocaine dealing and sentenced to twenty years of incarceration. In 2018, the trial court modified Fisher's sentence, placing him on 3550 days of probation. On March 16, 2023, Fisher admitted that he had violated the terms of his probation by committing Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”) and Class A misdemeanor operating a vehicle while intoxicated (“OWI”). The trial court revoked Fisher's probation and ordered him to execute the remaining 3550 days of his sentence. Fisher contends that the trial court abused its discretion in failing to issue a detailed statement explaining why it had revoked his probation and ordered him to execute the balance of his previously-suspended sentence. We affirm.

Facts and Procedural History

[2] In 2013, a jury found Fisher guilty of Class B felony cocaine dealing and, on August 19, 2013, the trial court sentenced him to twenty years of incarceration. In 2018, after Fisher moved to modify his sentence, the trial court placed him on probation for 3550 days.

[3] On March 7, 2021, Fisher was driving erratically when he was pulled over by a Lawrence Police Officer. Officers administered a field sobriety test, which Fisher failed. Officers administered a portable breath test that registered a result of 0.131 grams of alcohol per 210 liters of breath. While performing an inventory search of the vehicle, officers found a handgun with an extended magazine located underneath the spare tire cover in the trunk. The State charged Fisher with Level 4 felony unlawful possession of a firearm by an SVF, Class A misdemeanor carrying a handgun without a license, Class A misdemeanor OWI, and Class C misdemeanor operating a motor vehicle without ever having had a license.

[4] On March 9, 2021, the State alleged that Fisher had violated the terms of his probation by committing new crimes. Cass County Community Corrections rejected Fisher from their programming due to his history of violating terms of community supervision, absconding from community supervision, violating protective orders while on community supervision, committing violent offenses, and being found in contempt of court. All in all, Fisher had convictions for nine misdemeanors and six felonies.

[5] On March 16, 2023, Fisher admitted that he had violated the terms of his probation by committing unlawful possession of a firearm by an SVF and OWI. That same day, the trial court revoked Fisher's probation and ordered that he execute the remaining 3550 days of his sentence.

Discussion and Decision

[6] Fisher argues that the trial court abused its discretion in ordering him to execute 3550 days of his previously-suspended sentence. The Indiana Supreme Court has held that “a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard[,]” explaining that

[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants.

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances. Id.

[7] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). First, there must be a factual determination that a violation of a probation condition occurred by a preponderance of the evidence. See id. Here, Fisher admitted that he had violated the terms of his probation by committing two new crimes. Second, the trial court must determine whether the violation warrants revocation. See id. A trial court may revoke the defendant's probation upon proof of a single violation. See, e.g., Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021) (citations omitted), trans. denied. Where a violation of the terms of probation has been established, Indiana Code section 35-38-2-3(h)(3) allows the trial court to “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing.”

[8] We conclude that the trial court did not abuse its discretion when it revoked Fisher's probation and ordered that he execute the balance of his previously-suspended sentence. The trial court ordered Fisher to serve the balance of his previously-suspended sentence after it had shown lenience to him and he responded by committing two new crimes, including a felony. Rather than taking advantage of the trial court's lenience and reforming his behavior, Fisher drove while intoxicated and hid an illegally-possessed firearm with an extended magazine under the spare tire cover in his trunk. Because Fisher was shown lenience but committed new crimes (including a felony), the trial court's decision to impose his suspended sentence was not an abuse of discretion. See, e.g., Terpstra v. State, 138 N.E.3d 278, 289 (Ind. Ct. App. 2019) (affirming order to execute 4927 days of previously-suspended sentence when probationer committed new crime of Level 4 felony child molesting), trans. denied.

[9] Moreover, Fisher's extensive criminal history clearly indicates that alternatives to incarceration have not caused him to reform himself. As of his probation-revocation hearing, Fisher had nine misdemeanor convictions and six felony convictions and a history of violating terms of community supervision, absconding from community supervision, violating protective orders while on community supervision, committing violent offenses, and being found in contempt of court. Because Fisher has an extensive history of criminal convictions, and alternatives to incarceration have proven ineffective, the trial court did not abuse its discretion in ordering him to execute his suspended sentence. See Prewitt, 878 N.E.2d at 188 (concluding that trial court had not abused its discretion in ordering defendant to serve previously-suspended sentence when he had had multiple probation violations, had had a past criminal history, and had been unable to complete a halfway-house program).

[10] We decline Fisher's invitation to require trial courts to make detailed statements when ordering a probationer to execute all or part of a previously-suspended sentence. The requirement that trial courts issue a sentencing statement applies only to initial sentences, not to probation revocations. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009) (citing Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007)); see also Ind. Code § 35-38-2-3 (which contains no requirement that a trial court issues a sentencing statement before ordering the execution of a suspended sentence). Put simply, when a trial court orders execution of a previously-suspended sentence, it is not imposing a new sentence, it is reinstating a previously-imposed sentence that requires no further justification.

[11] We affirm the judgment of the trial court.

Riley, J., and Weissmann, J., concur.

Memorandum Decision by Judge Bradford

Judges Riley and Weissmann concur.