FAIR II v. STATE (2024)

MEMORANDUM DECISION

[1] Brad C. Fair II appeals the trial court's order that he serve part of his previously suspended sentence following the court's revocation of his probation. Fair raises a single issue for our review, namely, whether his sentence is inappropriate under Indiana Appellate Rule 7(B). However, our case law is clear that appellate review of sentences under Rule 7(B) is not applicable following a probation revocation. We therefore affirm the trial court's judgment.

Facts and Procedural History

[2] In October 2022, Fair pleaded guilty to four counts of Level 4 felony arson. Following his plea, the trial court sentenced him to an aggregate term of twenty-six years, with twenty-two years suspended. Four of his suspended years were to be served in community corrections and four of his suspended years were to be served on probation. The court also ordered Fair to pay more than $580,000 in restitution.

[3] In February 2024, Fair's community corrections case manager filed a petition to revoke Fair's placement, which petition was later amended. In support of the amended petition, Fair's case manager alleged that Fair had falsified the signatures of other community corrections officers on Fair's community service card, which, in turn, misrepresented Fair's compliance with required community service hours. Fair later stipulated to those facts. The court then concluded that Fair had violated the conditions of his placement and revoked his placement. The court further ordered Fair to serve a portion of his previously suspended sentence in the Department of Correction.

[4] This appeal ensued.

Discussion and Decision

[5] On appeal, Fair argues that his sentence is inappropriate under Indiana Appellate Rule 7(B). However, the Indiana Supreme Court has long made clear that Rule 7(B) is “not available” to a defendant following the revocation of probation and similar placements. Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). As the Jones Court explained:

Rule 7(B) authorizes appellate review and revision of “a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The Rule permits an appellate determination of the appropriateness of a criminal sentence and implements the permissive jurisdiction granted in Article 7, Section 4 of the Indiana Constitution: “The Supreme Court shall have, in all appeals of criminal cases, the power ․ to review and revise the sentence imposed.”

As this Court has recently held, the appellate evaluation of whether a trial court's sanctions are “inappropriate in light of the nature of the offense and the character of the offender” is not the correct standard to apply when reviewing a trial court's actions in a post-sentence probation violation proceeding. Prewitt v. State, 878 N.E.2d 184, 187-88 (Ind. 2007). 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.

Id. at 1289-90.

[6] Accordingly, Fair is not entitled to relief, and we affirm his sentence. Further, even if Fair had properly argued whether the trial court abused its discretion when it ordered him to serve a portion of his previously suspended sentence, we would have affirmed the trial court's judgment.

[7] Affirmed.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.