CARTER v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] After David Allan Carter violated the terms of his probation, the trial court revoked Carter's probation and ordered him to execute three years of his previously suspended sentence in the Indiana Department of Correction (“DOC”). Carter now appeals, claiming the trial court abused its discretion in ordering him to do so. We affirm.

Facts and Procedural History

[2] In 2003, Carter pleaded guilty to eight counts of Class A felony child molesting. As a result, Carter received an aggregate fifty-year sentence: thirty-eight years executed, and twelve years suspended. By late January 2022, Carter had been released to probation and advised of his probation conditions. In May 2023, the State alleged Carter violated the terms of his probation by failing to comply with sex offender treatment. Carter admitted to the violation and the trial court ordered him to serve two years of his previously suspended sentence on home detention.

[3] A few months later, Carter began sex offender therapy with mental health therapist Kari Byrd. As part of his treatment, Carter was prohibited from leaving his home without an “accountability partner” and was not allowed to carry cash. Tr. Vol. 1 at 28. Byrd imposed these additional conditions “to reduce the risk in the community” after Carter told a polygrapher “he had a plan that he was wanting to find a young male child and he was gonna offer him money to provide oral sex to him.” Id. at 29. Byrd advised Carter of the additional conditions “numerous times,” and Carter had agreed to adhere to them. Id.

[4] In early November 2023, Carter walked to a doctor's appointment alone. Although Carter contacted his home detention case manager and received permission to do so, she was unaware of the additional conditions set by Byrd. Carter did not call Byrd or inform his case manager of his additional conditions. Carter later admitted to leaving his home without an accountability partner and he was discharged from his sex offender treatment due to non-compliance.

[5] A few weeks later, the State alleged Carter violated the terms of his probation by failing to adhere to the conditions imposed by Byrd and owing $652 in home detention fees. Following an evidentiary hearing on the State's petition, the trial court found Carter violated his probation terms and ordered him to serve three years of his previously suspended sentence in the DOC.

The trial court did not abuse its discretion in ordering Carter to execute three years of his previously suspended sentence in the DOC.

[6] In essence, Carter claims the trial court abused its discretion by imposing too harsh a sanction for his probation violation. Probation is a matter of grace, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Sentencing decisions for probation violations are left to the trial court's discretion. Id. We reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id.

[7] “Probation revocation is a two-step process.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the trial court must make a factual determination of whether the probationer violated a condition of probation. Id. If the trial court identifies a violation, it must then “determine if the violation warrants revocation of the probation.” Id. Upon finding a probation violation, the trial court may impose one or more of the following sanctions: “(1) Continue the person on probation, with or without modifying or enlarging the conditions[;] (2) Extend the person's probationary period for not more than one (1) year beyond the original probationary period[;] (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(h) (2015). “While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant's probation violation[.]” Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013).

[8] Carter violated the terms of his probation by traveling to his doctor's appointment without an accountability partner. In arguing he was “left in the unenviable position where he had to make a choice between his health and his liberty[,]” Carter brushes aside the steps he could have taken to comply with the additional conditions imposed by Byrd. Appellant's Br. at 8. And as the trial court noted, this violation was “more than trivial,” and was Carter's “second violation within a pretty ․ short period of time.” Tr. Vol. 1 at 61–62. Put simply, Carter squandered the grace extended by the trial court, and we cannot say ordering him to serve three years of his previously suspended sentence was an abuse of discretion. See Prewitt, 878 N.E.2d at 188 (concluding the trial court “acted well within its discretion” in ordering defendant to execute a portion of his previously suspended sentence due to, among other things, defendant's multiple probation violations).

Conclusion

[9] The trial court did not abuse its discretion in ordering Carter to execute three years of his previously suspended sentence in the DOC.

[10] Affirmed.

Kenworthy, Judge.

Vaidik, J., and Felix, J., concur.