BOWER v. STATE (2022)

MEMORANDUM DECISION

Case Summary and Issues

[1] Sean Bower's probation was revoked in two cases, and he was ordered to execute a portion of the previously suspended sentence in each case. Bower did not timely appeal the revocations but filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2, which the trial court granted. On appeal, Bower raises one issue, which we restate as whether the trial court abused its discretion in revoking his probation by ordering him to serve a portion of his previously suspended sentences. The State of Indiana cross-appeals, alleging Post-Conviction Rule 2 does not apply to probation revocation hearings and therefore, Bower forfeited his right to appeal.

[2] We conclude that although Post-Conviction Rule 2 does not apply to probation revocation hearings, Bower's right to appeal can and should be revived. On the merits, we conclude that the trial court did not abuse its discretion in ordering Bower to serve a portion of his previously suspended sentences, and we affirm.

Facts and Procedural History

[3] In October 2016, Bower was charged in cause number 16D01-1610-F3-842 (“Cause #842”) with aggravated battery, a Level 3 felony; two counts of strangulation, each a Level 6 felony; and criminal confinement, a Level 6 felony. In June 2017, while on house arrest awaiting trial for Cause #842, Bower was charged in cause number 16D01-1706-F4-568 (“Cause #568”) with unlawful possession of a firearm by a serious violent felon, a Level 4 felony; violation of a home detention order, a Level 6 felony; possession of methamphetamine, a Level 6 felony; unlawful possession of a syringe, a Level 6 felony; assisting a criminal, a Level 6 felony; maintaining a common nuisance, a Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. In November 2017, Bower pleaded guilty to aggravated battery, strangulation, and criminal confinement under Cause #842 and, in the same plea agreement, to possession of a firearm by a serious violent felon and violation of a home detention order under Cause #568. The remaining charges under both cause numbers were dismissed and the trial court sentenced Bower to an aggregate of approximately 4,700 days to be served in the Indiana Department of Correction.

[4] In July 2019, the trial court modified Bower's sentences and ordered him to serve the remainder of his sentences on community transition followed by probation to be served on home detention. As part of his probation Bower was ordered to do the following: report to his probation officer as directed; refrain from committing any criminal act; refrain from possessing or consuming illegal controlled substances; refrain from consuming alcohol; and abide by all conditions related to home detention as ordered by the trial court.

[5] Bower began serving his probation in November 2019. Between January 2020 and July 2020, Bower tested positive for THC twice and methamphetamine and amphetamine once. He also failed to either answer contact attempts made by field officers or meet with his probation officer on multiple occasions. In May 2020, a home search revealed several items of drug paraphernalia and one bottle of alcohol. As a result, administrative sanctions were entered against Bower in January, May, and July of 2020. In September 2020, Bower again tested positive for methamphetamine and amphetamine. The State filed a petition to revoke Bower's probation in both causes and Bower was taken into custody. In October 2020, a supplemental petition for revocation was filed alleging that Bower was charged with the new criminal offense of violation of a home detention order, a Level 6 felony.

[6] On January 29, 2021, Bower was briefly released from jail on GPS monitoring to undergo an evaluation for substance abuse. Bower was ordered to return to custody on February 9, 2021, and a fact-finding hearing on probation revocation was scheduled for February 17, 2021, but Bower failed to return to custody or appear for the fact-finding hearing. Subsequently, Bower was arrested and entered an admission to being in violation of his probation conditions. A sanctions hearing was held on April 19, 2021. At the hearing, Bower again admitted to violating the terms of his current probation and indicated that he has violated other court-imposed probations in the past. Bower, age thirty at the time of the hearing, also acknowledged that he has been consistently involved with the criminal justice system since the age of fourteen, has been abusing illegal substances since 2014, and that he needs help regarding substance abuse.

[7] At the conclusion of the hearing, the trial court credited Bower for his admission but emphasized that Bower's criminal history and past probation violations were extensive. As a result, the trial court revoked Bower's probation and ordered Bower to execute approximately 2,400 days of his previously suspended sentence. At the hearing, Bower requested and was appointed appellate counsel. On April 23, 2021, appellate counsel was sent an email notification regarding the appointment. However, due to no fault of Bower, appellate counsel failed to file a timely notice of appeal. On June 23, 2021, the trial court sent a reminder of the appointment to appellate counsel. Thereafter, appellate counsel filed a petition to file a belated notice of appeal pursuant to Post-Conviction Rule 2, and on June 29, 2021, the trial court granted the petition. The notice of appeal was filed the same day.

Discussion and Decision

I. State's Cross-Appeal: Forfeiture

[8] We first address the State's cross-appeal arguing that belated appeals from orders revoking probation are not available pursuant to Post-Conviction Rule 2 and as a result, Bower forfeited his right to appeal by failing to timely file a notice of appeal from the order revoking his probation. Bower acknowledges the authority supporting this position but argues the circumstances of this case warrant allowing consideration on the merits pursuant to In re O.R., 16 N.E.3d 965 (Ind. 2014), which permits our court to revive belated appeals upon a showing of extraordinarily compelling reasons. Although we agree with the State that Post-Conviction Rule 2 does not apply to probation revocation proceedings and therefore, Bower forfeited his right to appeal by failing to file a timely notice of appeal, we accept Bower's unrebutted argument that there are sufficiently compelling reasons to revive his appeal.

[9] To initiate an appeal, a party must file a notice of appeal within thirty days after entry of a final judgment. Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R.2.” Ind. Appellate Rule 9(A)(5). Post-Conviction Rule 2(1)(a) allows an eligible defendant to petition the trial court for permission to file a belated notice of appeal of his “conviction or sentence.” However, “the sanction imposed when probation is revoked does not qualify as a ‘sentence’ under the Rule[.]” Dawson v. State, 943 N.E.2d 1281, 1281 (Ind. 2011). Therefore, Post-Conviction Rule 2 does not allow belated appeals from an order revoking probation. Id.

[10] Here, because Bower's appellate counsel did not file the notice of appeal within the required thirty days and Post-Conviction Rule 2 does not allow a belated appeal of revocation of Bower's probation, he forfeited his right to appeal by failing to file a timely notice of appeal. However, our supreme court has indicated that the untimely filing of a notice of appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. O.R., 16 N.E.3d at 971. Indeed, “[t]he Court may, upon the motion of a party or the Court's own motion, permit deviation from [the Appellate] Rules.” Ind. Appellate Rule 1. If the right to appeal has been forfeited, the question is whether there are extraordinarily compelling reasons why this forfeited right should be restored. O.R., 16 N.E.3d at 971. Bower argues there are such reasons here, including that he was proactive and expressly requested appellate counsel at the sentencing hearing on April 19, 2021, and the trial court granted his request. Bower's appointed appellate counsel failed to recognize his appointment and did nothing to ensure the timely filing of a notice of appeal. The fault lies solely with appellate counsel, not Bower.

[11] Despite failing to recognize his appointment and timely file a notice of appeal, when the trial court sent an appointment reminder on June 23, 2021, a month after the thirty-day deadline to file a notice of appeal had passed, appellate counsel immediately filed a petition seeking permission to file a belated notice of appeal, which the trial court granted. In doing so, the trial court expressly found that the failure to file a timely notice of appeal was not Bower's fault. See Appellant's Appendix, Volume 2 at 217. In short, because Bower timely requested and was appointed appellate counsel, appellate counsel failed to act on his appointment, and the trial court found Bower to be without fault for the failure to timely file a notice of appeal, he contends that extraordinarily compelling reasons exist to restore Bower's right to appeal his probation revocation. The State does not address this argument at all, so we treat it as conceded and therefore proceed to evaluate his appeal on the merits.

II. Bower's Appeal: Probation Revocation

[12] Probation is not a right, but instead, it is a matter of grace left to the trial court's discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Once a trial court orders probation, the judge is given considerable leeway regarding how to proceed and may revoke probation if a violation occurs. Id. Accordingly, the decision to revoke probation is reviewed for an abuse of discretion. Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances of the present case. Id. On appeal, we do not reweigh the evidence or judge the credibility of witnesses. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). Rather, we consider only the evidence most favorable to the judgment. Id.

[13] Bower argues that the trial court abused its discretion by revoking his probation and ordering him to execute a significant portion of his suspended sentence. To begin, we note that probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). The first step requires that the trial court make a factual determination as to whether the probationer violated the terms of his probation. Id. Although the probationer is generally entitled to certain due process protections, when the probationer admits the violations, as Bower did, those safeguards are unnecessary and the trial court may proceed to the second step. Id.

[14] The second step requires that the trial court determine whether a violation warrants revocation. Id. Proof of a single violation is sufficient to permit a trial court to revoke probation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). When the trial court determines revocation is appropriate, Indiana Code section 35-38-2-3(h) provides that the trial court may order one or more of several sanctions, including the execution of all or part of the original suspended sentence. Holsapple v. State, 148 N.E.3d 1035, 1039 (Ind. Ct. App. 2020).

[15] Here, the terms of Bower's probation required that he report to his probation officer as directed, refrain from committing any criminal act, refrain from possessing or consuming illegal controlled substances, refrain from consuming alcohol, and abide by all conditions related to home detention. Bower was released to home detention in November 2019 and over the course of the next ten months violated these terms of probation on multiple occasions. Specifically, Bower tested positive for either THC or methamphetamine and amphetamine on four separate occasions and a search of Bower's home revealed multiple items of drug paraphernalia and a bottle of alcohol. Bower also missed multiple meetings with his probation officer. The presence of a single violation is sufficient, by itself, to warrant revocation of probation, Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021), trans. denied, and Bower has many violations. Accordingly, we cannot say the trial court's decision to revoke Bower's probation and order him to execute a portion of his suspended sentence after numerous probation violations over the course of approximately one year was an abuse of discretion.

[16] Although Bower argues that he should be granted leniency and permitted to remain on probation so that he can obtain help for his substance abuse problem, Bower admitted to repeatedly violating the terms of his current probation. In fact, those probation violations continued to occur despite three separate administrative sanctions entered against him to help prevent him from committing future violations. Bower also admitted to a history of violating prior probations. Further, when granted temporary release in January 2021 to undergo a substance abuse evaluation, Bower violated the terms of his release and failed to return to custody. Bower simply does not excel when granted leniency. Therefore, considering the evidence most favorable to the judgment, the trial court did not abuse its discretion in revoking Bower's probation and ordering a partial execution of his suspended sentence.

Conclusion

[17] We conclude that although Post-Conviction Rule 2 does not apply to probation revocation proceedings, Bower's right to appeal can be revived. In considering the merits of his appeal, we conclude the trial court did not abuse its discretion in ordering Bower to serve a portion of his previously suspended sentence. Therefore, we affirm.

[18] Affirmed.

Robb, Judge.

Riley, J., and Molter, J., concur.