Brandon Savage, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Brandon Savage ¹ appeals the trial court's amended sentencing order sentencing Savage to serve all 1,830 days of Savage's previously suspended sentence as a sanction for Savage's admitted probation violation. Savage raises two issues, which we consolidate and restate as whether the trial court abused its discretion when it amended Savage's sentence by revoking probation. We affirm.

Facts and Procedural History

[2] On February 28, 2017, the State brought multiple charges against Savage, including attempted robbery, as a Level 5 felony.² Savage subsequently entered into an agreement with the State in which Savage agreed to plead guilty to attempted robbery, and, in exchange, the State agreed to dismiss the remaining counts. The Marion County Probation Department (“MCPD”) completed a presentence investigation report in which it noted that Savage was twenty-seven years old and had a “long history of mental illness” and criminal activity. App. at 78. Savage had been diagnosed with a mild intellectual disability, attention deficit disorder, bipolar disorder, intermittent explosive disorder, and post-traumatic stress disorder. Savage had made several suicide attempts. As an adult, Savage had been arrested twenty-nine times and convicted of one felony and sixteen misdemeanors. Savage also had outstanding arrest warrants in Tippecanoe and Hendricks Counties in Indiana and Fayette County in Kentucky.

[3] At Savage's November 3, 2017, guilty plea hearing, the trial court noted Savage's criminal history as an aggravating circumstance but also noted that much of Savage's criminal history “appear[s] to be as a direct result of [Savage's] inability to receive proper supervision from society for the mental health challenges that he has.” Tr. at 35-36. As mitigators, the trial court noted Savage's “multiple challenges in terms of being abused from a child, being bipolar, having PTSD, intellectually deficient, suicidal.” Id. at 36. The trial court sentenced Savage to six years, with “1830 Days” suspended. See App. at 19. In so doing, Judge Mark Stoner stated:

The Court would note as a matter of record that I wouldn't be giving [Savage] the six years if we had an adequate mental health system in this country. It is not the court's intention to incarcerate [ ] Savage for violations of the conditions of [Savage's] probation as [Savage is] to receive a mental health probation officer [and] go through assessment under BDDS [Bureau of Developmental Disabilities Services].

Tr. at 36.

[4] On December 4, 2017, Savage was arrested and charged with battery resulting in bodily injury to a public safety officer and resisting law enforcement. In response, MCPD filed notices of probation violation alleging that Savage had violated the terms and conditions of probation by committing nine new criminal offenses, including battery resulting in bodily injury to a public safety officer, as a Level 5 felony.³ Savage admitted to violating the terms of probation by committing Level 5 felony battery, and the State dismissed the remaining charges. The court continued Savage on probation with the added condition that Savage receive treatment at Hickory Treatment Center.

[5] On August 29, 2023, MCPD filed a second notice of violation of probation in which it alleged that Savage had failed to comply with the recommendations from the mental health evaluation, failed to complete treatment at Hickory Treatment Center, and failed to communicate truthfully with the probation department. The notice alleged that Savage was discharged from the Hickory Treatment Center to Terre Haute Union Hospital due to medical issues and that Savage “bounced between numerous treatment agencies, hospitals, shelters” afterwards. App. at 146. The notice further stated that the probation department had not received verification from Savage that Savage was compliant with prescribed medications and treatment. On November 9, 2023, Savage entered into an agreement with the State in which Savage agreed to transfer the case to Behavioral Health Court, and the State agreed that the most recent action to hold Savage in violation of probation would be “closed effective immediately.” Id. at 160.

[6] On April 17, 2024, MCPD filed a third notice of violation of probation in which it alleged that Savage had violated the terms and conditions of Behavioral Health Court by failing to comply with its requirements. Specifically, the probation department reported that Savage was at risk of termination from Behavioral Health Court due to “lack of truthful communication with staff, [Savage's] failure to engage in treatment services with [Savage's] referred provider, and [Savage's] failure to maintain a single verifiable address.” Id. at 188.

[7] On June 20, Judge Amy Jones held a hearing on the notice of violation of probation, and Savage admitted to failing to comply with the requirements of Behavioral Health Court. The probation department recommended that the court sanction Savage by revoking the “full back-up. That would be 1830 days.” Tr. at 77. The State agreed and joined with the probation department's “recommendation for the 1830 days back up time.” Id. at 83. The court noted that Savage's original sentence was six years, suspended so that Savage could be given opportunities to obtain mental health services. However, the court noted that, since that time, Savage had proven ‘[in]capable of being placed in a less restrictive environment than the Department of Corrections [sic].” Id. at 86. The court concluded that “the only thing I am left to be able to do at this point is to award the 1083 days of backup time.” Id. The court subsequently issued a written order which also stated that Savage's sanction for the probation violation was “0 Year(s) and 1083 Day(s)” with no time suspended. June 20, 2024, Appealed Order.

[8] Savage filed a timely notice of appeal, but before the appeal was briefed, the trial court filed with this Court a “Motion for Leave of Court to Correct a Clerical Mistake in Judgment Pursuant to Indiana Trial Rule 60(A).” App. at 200. In that motion, the court stated that it had “ordered [Savage] to serve [Savage's] suspended time of 1830 days․. However, on June 20, 2024, the trial court inadvertently transposed numbers and entered judgment to serve 1803 [days] instead.” Id. at 201. This Court granted the motion and remanded the case to the trial court with instructions to “hold a hearing, if necessary, on the issue of amending the sentencing order,” with the appeal to follow, if necessary. Sept. 17, 2024, Order.

[9] On September 26, 2024, the trial court held a hearing on the issue of amending the sentencing order at which Savage appeared with counsel. The trial court stated, in part, that at the sentencing hearing:

the State, the defense counsel, and myself always referencing back-up time and that back-up time being 1,830 days․. At the time of the sentencing hearing, I had misspoke [sic] and[,] instead of the 1,830 days[,] said on the record, 1,083 days. Same numbers, different order; but significant impact to Brandon Savage. To further complicate the matter, I did not catch the error on the court's prepared sentencing order. And, in fact, it wasn't until I was reviewing the transcript; and that's when the error was discovered. Upon discovering the error, I then immediately filed leave of the Court of Appeals to retain jurisdiction and correct the error that I had made during the course of the sentencing hearing and the subsequent sentencing order․. It was certainly my intent that [Savage] receive the full executed portion of that back-up time that Judge Stoner had awarded him at the time of sentencing. And, um, it was not just [a] typographical error, it was [a] spoken word error, as well.

Supp. Tr. at 5-6. The court then heard argument from Defense counsel and the State and issued a written amended sentencing order sentencing Savage to “0 Year(s) and 1830 Day(s).” Sept. 26, 2024, Appealed Order. This appeal then resumed.

Discussion and Decision

[10] Savage contends that the trial court erred when it amended Savage's sentence pursuant to Indiana Trial Rule 60(A). We review such a ruling for an abuse of discretion. See Elliott v. Dyck O'Neal, Inc., 46 N.E.3d 448, 456 (Ind. Ct. App. 2015), trans. denied. We also review probation violation sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “To constitute an abuse of discretion, it must be shown that the trial court's action is clearly against logic and the effect of [the] facts and circumstances before the court as well as the reasonable and probable inferences to be drawn therefrom.” Elliott, 46 N.E.3d at 456 (quotation marks and citation omitted). We may not reweigh the evidence or judge the credibility of witnesses. See, e.g., Puckett v. State, 183 N.E.3d 335, 339 (Ind. Ct. App. 2022), trans. denied.

[11] Trial Rule 60(A) provides that a court, of its own initiative, may correct “clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission[.]” Ind. Trial Rule 60(A).⁴ Such corrected orders or “nunc pro tunc” entries are entries

made now of something which was actually previously done, to have effect as of the former date. Such an entry may be used to either record an act or event not recorded in the court's order book or to change or supplement an entry already recorded in the order book. Its purpose is to supply an omission in the record of action really had but omitted through inadvertence or mistake.

The trial court's record, however, must show that the unrecorded act or event actually occurred. Thus, this [Supreme] Court has required that a written memorial must form the basis for establishing the error or omission to be corrected by the nunc pro tunc order. In order to provide a sufficient basis for the nunc pro tunc entry, the supporting written memorial[:]

(1) must be found in the records of the case; (2) must be required by law to be kept; (3) must show action taken or orders or rulings made by the court; and (4) must exist in the records of the court contemporaneous with or preceding the date of the action described.

Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995) (quotations and citations omitted). However, “[t]he requirement of a written memorial may be relaxed when a simple correction of a clerical error in the record is sought.” Stowers v. State, 363 N.E.2d 978, 983 (Ind. 1977)); see also Rissler v. Lynch, 744 N.E.2d 1030, 1033 (Ind. Ct. App. 2001) (quotation marks and citation omitted) (noting a “clerical error has been defined as a mistake by a clerk, counsel, judge or printer which is not a result of judicial function and cannot reasonably be attributed to the exercise of judicial consideration or discretion.”). Transcriptions from a court hearing may “form an adequate documentary basis for [a] nunc pro tunc entry.” Stowers, 363 N.E.2d at 984.

[12] Here, the transcript of the June 20, 2024, probation violation hearing discloses that the trial court made the clerical error of transposing the number of days of “backup time” when it ordered Savage to serve Savage's suspended time of “1083” days instead of “1830” days. It is clear from both the original sentencing order and the June 20 transcript that Savage's “backup time” from Savage's suspended sentence was 1,830 days. See App. at 19 (November 3, 2017, sentence, suspending the 1830 days); Tr. at 77, 83 (probation department recommending Savage be ordered to serve the “full back-up time” of “1830 days”); id. at 83 (prosecutor recommending Savage be ordered to serve “the 1830 days back up time”); id. (court noting Savage's original sentence was “1,830 days ․ all suspended”).

[13] It is also clear from the trial court's statement at that hearing that Savage must serve “the 1083 days of backup time” that the court meant to impose the entire backup time. Id. at 86 (emphasis added). We note that the court did not state that Savage must serve 1083 of the backup time, but “the 1083 days of backup time.” The latter statement indicates that the court meant to impose all of the backup time rather than some portion of it. That interpretation of the court's statement is bolstered by the fact that the alleged clerical mistake of “1083” days is a transposition of the numbers of the actual “1830” days of the suspended sentence. Thus, the June 20, 2024, transcript—in conjunction with the original written sentence of 1830 days, suspended—forms the basis for establishing that the trial court intended to sentence Savage to the entire amount of Savage's suspended sentence, i.e., 1,830 days, as punishment for Savage's probation violation.

[14] Nor did the trial court abuse its discretion when it ordered Savage to serve the entire suspended sentence rather than only part of it, as Savage claims. Probation is “a matter of grace and a conditional liberty that is a favor, not a right.” State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (quotation marks and citation omitted). Under Indiana Code Section 35-38-2-3(h), if a court finds that a person has violated probation, it may impose one or more of several possible sanctions, including “execution of all or part of the sentence that was suspended at the time of initial sentencing.” I.C. § 35-38-2-3(h)(3). And, while probationers must be given the opportunity to present mitigating factors, Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), the trial court is not required to consider aggravating and mitigating factors when deciding whether to revoke probation, Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018). Moreover, a single violation of a condition of probation is sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).

[15] Here, the trial court specifically noted that, since the time of Savage's initial sentencing, Savage had been given multiple opportunities to obtain mental health services but, at times, “willful[ly]” chose not to participate and/or cooperate with such services. Tr. at 86. The court also noted that Savage had continued to commit crimes and violate probation multiple times.⁵ Therefore, the trial court acted well within its discretion when it revoked Savage's probation and ordered Savage to serve all of the suspended sentence. Savage's contentions to the contrary are simply requests that we reweigh the evidence, which we may not do. See, e.g., Puckett, 183 N.E.3d at 339.

Conclusion

[16] The trial court did not abuse its discretion when it revoked Savage's probation and amended its sentence to correct a clerical error.

[17] Affirmed.

FOOTNOTES

1.   Savage was charged and ultimately convicted as a male but subsequently informed his legal counsel that he was transgender. Thereafter, the parties to this action at times have referred to Savage with female pronouns, although Savage has made no formal request that anyone do so. We refer to Savage by name.

2.   Ind. Code § 35-42-5-1(a); I.C. § 35-41-5-1.

3.   I.C. § 35-42-2-1(c), (g)(5).

4.   When the mistake is not noticed until after an appeal and Notice of Completion of Clerk's Record are filed, the mistake may be corrected only “with leave of the court on appeal.” T.R. 60(A). We granted such leave in this case.

5.   Thus, the trial court's decision was not, as Savage argues, based on a mistaken interpretation of the intent of the original sentencing judge.

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.