PERKINS v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] In this consolidated appeal, Harley Perkins challenges the sanctions imposed by the trial court following probation violations. Finding no abuse of discretion in the trial court's decision that Perkins serve the remainder of his suspended sentences in the Indiana Department of Correction (DOC), we affirm.

Facts and Procedural History

[2] Recently, a different panel of our Court set forth much of the relevant history in Perkins's case as follows:

On November 27, 2017, the State charged Perkins with failure to return to lawful detention as a level 6 felony under cause number 48C06-1711-F6-2898 [F6-2898]. Perkins pled guilty as charged pursuant to a plea agreement. The court sentenced him to two years of probation. On November 29, 2021, the Probation Department filed a notice of probation violation in [F6-2898] alleging that he violated the terms of his probation by committing possession of paraphernalia and operating a motor vehicle without ever being licensed, both as class C misdemeanors. It also alleged that Perkins admitted to using methamphetamine, THC, and alcohol while on probation. The court held an evidentiary hearing in January 2022, during which Perkins admitted to the alleged violations. The court imposed no sanction for the violations.

On June 22, 2022, the State charged Perkins with unlawful possession of a syringe as a level 6 felony, resisting law enforcement as a class A misdemeanor, possession of marijuana as a class B misdemeanor, public nudity as a class B misdemeanor, and possession of paraphernalia as a class C misdemeanor in cause number 48C06-2206-F6-1802 [F6-1802]. On July 6, 2022, the Probation Department filed a second notice of probation violation in [F6-2898] alleging that Perkins violated the terms of his probation by committing the offenses alleged in [F6-1802]. It also alleged that Perkins admitted to using methamphetamine and marijuana while on probation. The court held an evidentiary hearing in July 2022, during which Perkins admitted to the alleged violations. The court imposed no sanction for the violations.

In March 2023, Perkins entered into a plea agreement with the State in [F6-1802] in which he agreed to plead guilty to resisting law enforcement, possession of marijuana, possession of paraphernalia, and public nudity, in exchange for dismissal of the felony count and an agreed sentence of one year suspended to probation. On July 18, 2023, the Probation Department filed a notice of probation violation in both [F6-2898] and [F6-1802] alleging that Perkins violated the terms of both probationary sentences by committing theft as a level 6 felony and testing positive for methamphetamine and THC. The court held an evidentiary hearing on September 1, 2023. The court found that the State met its burden of proof that Perkins violated the terms of his probationary sentences by committing a new crime. As a sanction for his violation in [F6-2898], the court revoked Perkins's probation and ordered him to serve the balance of his previously suspended two-year sentence on home detention. As a sanction for his violation in [F6-1802], the court revoked Perkins's probation and ordered him to serve the balance of his previously suspended one-year sentence on home detention.

Perkins v. State, No. 23A-CR-2327, 2024 WL 1849678, at *1 (Ind. Ct. App. Apr. 29, 2024) (affirming and finding that home detention sanction was not an abuse of discretion).

[3] In January 2024, the probation department filed violation notices in both F6-2898 and F6-1802 and amended the notices in February 2024. Appellant's App. Vol. 2 at 79-80, 84-85, 219, 223. The amended notice in F6-2898 alleged that in December 2023 and January 2024, Perkins was away from his residence on thirty-seven separate days in violation of the terms of home detention. Id. at 84. The notice also alleged that he violated the conditions of his sentence when he submitted three positive methamphetamine and THC drug screens and admitted to using drugs in two of the three instances. Id. at 84-85. Additionally, the notice alleged that Perkins was in arrears on home detention and urine drug-screen fees. Finally, the notice alleged that he committed the new offenses of possession of methamphetamine and possession of paraphernalia on January 29, 2024. Id. at 85. The amended notice in F6-1802 alleged that Perkins violated the conditions of his sentence by failing to successfully complete his executed sentence in F6-2898 and by committing possession of methamphetamine and paraphernalia on January 29, 2024. Id. at 223.

[4] At a February 2024 evidentiary hearing on the amended notices, Probation Officer Matthew Miller testified that Perkins had submitted three drug screens that tested positive for methamphetamine and THC, that Perkins had signed admission forms for two of the positive screens, and that Perkins was $2,166 in arrears on fees. Tr. Vol. 2 at 75-77, 79; Ex. Vol. 1 at 4-7. Probation Officer Natalie Griner testified that she supervised individuals on home detention and that she ran a report on the location of Perkins's home-detention bracelet for the month of December 2023. Tr. Vol. 2 at 80. She stated that Perkins was not at his registered address and thus noncompliant with his conditions of home detention on more than fifteen days in December. Id. at 84. The State also submitted a probable cause affidavit for the new charges that Perkins was alleged to have committed on January 29, 2024. Id. at 85, 87.¹

[5] Following the State's presentation of evidence, Perkins, who represented himself, admitted to all the allegations in the amended petition for F6-2898 except the allegation that he committed a new offense because he contended that he had not been found guilty of the new charges. Id. at 90-92.² The trial court found that Perkins had committed the violations as alleged in the amended notices. Appellant's App. Vol. 2 at 91, 229; Tr. Vol. 2 at 95, 96. In sanctioning Perkins for violations associated with F6-2898, the court ordered two years “revoked and ordered executed at the” DOC. Appellant's App. Vol. 2 at 91. Regarding F6-1802, the court ordered one year revoked, required that the sentence be served in the DOC, and specified that it run consecutive to the F6-2898 sentence. Id. at 229. Perkins appeals.

Discussion and Decision

[6] Perkins contends that because “he had not yet begun serving” his consecutive sentence in F6-1802, the trial court “should have let him continue on Home Detention under” F6-1802. Appellant's Br. at 11. He “believes the court abused its discretion in revoking both sentences to the” DOC. Id.

[7] Probation is a matter of grace left to trial court discretion. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a defendant has violated a condition of his 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). We review the trial court's sentencing decision following the revocation of probation for an abuse of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of discretion occurs “only where the trial court's decision is clearly against the logic and effect of the facts and circumstances” before the court. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). So long as the trial court follows the procedures outlined in Indiana Code Section 35-38-2-3, the court may properly order execution of a suspended sentence upon a finding of a single violation by a preponderance of the evidence. Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021), trans. denied.

[8] As for Perkins's contention that because he had not yet started serving his F6-1802 sentence, he could not have committed violations and had probation revoked in that case, he is mistaken. It is a “well-established principle of Indiana law that a defendant can have his probation revoked prospectively and his suspended time imposed even before he begins the probation phase of his sentence.” Waterson v. State, 65 N.E.3d 613, 617 (Ind. Ct. App. 2016); see also Hardy v. State, 975 N.E.2d 833, 838 (Ind. Ct. App. 2012).

[9] Turning to the trial court's chosen sanctions, we observe that Perkins has been treated leniently in the past. More than once, his probation violations have resulted in no sanctions. Rather than being placed in the DOC, he has been given the chance to participate in home detention. In response to such grace, Perkins has tested positive for illegal drugs three times, admitted to multiple violations including dozens of instances of home detention noncompliance, and failed to pay required fees. On top of that, he committed a new offense, which is a violation of probation. See Killebrew, 165 N.E.3d at 582 (noting that “the commission of any crime is a consequential probation violation that directly and negatively impacts other people” and concluding that trial court did not abuse its discretion in revoking probation and imposing previously suspended sentence).

[10] Considering Perkins's numerous violations of the terms and conditions of probation and home detention, we cannot say that the trial court's sentencing decision was clearly against the logic and effect of the facts and circumstances. We therefore conclude that the trial court did not abuse its discretion in revoking Perkins's home detention and ordering him to serve his previously suspended sentences in the DOC. See, e.g., Overstreet v. State, 136 N.E.3d 260, 264 (Ind. Ct. App. 2019) (finding no abuse of discretion where court revoked probation and ordered defendant to serve previously suspended sentence after three positive drug screens and prior leniency), trans. denied (2020). We affirm the trial court's orders.

[11] Affirmed.

FOOTNOTES

1.   At the hearing, Perkins challenged the State's probable cause affidavit, claiming that only one charge, possession of methamphetamine, existed. Tr. Vol. 2 at 85-87. Over Perkins's objection, the trial court admitted the State's probable cause affidavit as Exhibit 6. Id. at 87. Apparently, Perkins submitted a different probable cause affidavit, which the trial court admitted as Exhibit A. Id. at 89. Perkins's Exhibit Volume 1 includes a table of contents that lists a probable cause affidavit as Exhibit 6 and a probable cause affidavit as Exhibit A, both within Exhibit Volume 2. However, no Exhibit Volume 2 has been submitted. That said, the Odyssey case management system shows that the original charges stemming from January 29, 2024, were filed as cause number 48C06-2401-F6-285 (F6-285). In late February 2024, the State dismissed all counts in F6-285 except the methamphetamine possession count.

2.   A jury has since found Perkins guilty of methamphetamine possession in F6-285, and he has been sentenced to two years of incarceration in the DOC. An appeal of F6-285 is pending.

Crone, Judge.

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