MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 27 2017, 8:42 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pierre Burdette, June 27, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1702-CR-409
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1407-F6-42
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Pierre D. Burdette (Burdette), appeals the trial court’s
imposition of an executed sentence as a sanction for Burdette’s admitted
probation violation.
[2] We affirm.
ISSUE
[3] Burdette raises one issue on appeal, which we restate as: Whether the trial
court abused its discretion in sanctioning Burdette’s probation violation.
FACTS AND PROCEDURAL HISTORY
[4] On October 8, 2014, under Cause Number 02D05-1407-F6-042 (Cause F6-042),
Burdette pled guilty pursuant to a plea agreement to resisting law enforcement,
a Level 6 felony, Ind. Code § 35-44.1-3-1(b)(1). In accordance with the plea
agreement, the trial court entered a judgment of conviction and sentenced
Burdette to a term of two years, fully suspended to probation. Twenty days
later, on October 28, 2014, the State filed a petition to revoke Burdette’s
probation after he was charged with committing the additional offenses of
resisting law enforcement as a Level 6 felony, driving while suspended with a
prior as a Class A misdemeanor, and reckless driving as a Class B
misdemeanor. The State’s petition to revoke probation was amended on
December 12, 2014, after Burdette absconded from supervision. On April 13,
2015, Burdette admitted to the probation violation. Accordingly, on April 23,
2015, the trial court modified Burdette’s suspended sentence by sentencing him
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to one year on home detention through Allen County Community Corrections,
followed by one year of probation. Burdette completed his term of home
detention and resumed supervised probation on March 4, 2016.
[5] While still on probation, on November 8, 2016, Burdette was charged with
having committed four new offenses under Cause Number 02D05-1611-F6-
1218 (Cause F6-1218): domestic battery committed in the presence of a child, a
Level 6 felony, I.C. § 35-42-2-1.3(a)(1),(b)(2); interference with the reporting of
a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1); invasion of privacy, a
Class A misdemeanor, I.C. § 35-46-1-15.1(2); and criminal mischief, a Class B
misdemeanor, I.C. § 35-43-1-2(a). The facts supporting these charges provide
that on September 10, 2016, Burdette went to the home of his ex-girlfriend’s
mother, where the ex-girlfriend was present, despite the fact that his ex-
girlfriend had an active protective order prohibiting Burdette from contacting
her. Upon Burdette’s arrival, Burdette’s ex-girlfriend immediately called 9-1-1.
As the ex-girlfriend was talking to a police dispatcher, Burdette snatched the
phone from her hand and threw it on the ground, causing it to shatter. In the
course of grabbing the phone away, Burdette scratched his ex-girlfriend behind
the ear, and when she tried to retrieve the phone from the ground, Burdette
pushed her away. The former couple’s shared children, a five-year-old and a
one-year-old, witnessed the event. Burdette fled the scene before the police
arrived.
[6] On November 14, 2016, the State petitioned to revoke Burdette’s probation
under Cause F6-042. On January 17, 2017, after a jury was sworn in for the
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scheduled jury trial in Cause F6-1218, Burdette pled guilty to interference with
the reporting of a crime as a Class A misdemeanor, invasion of privacy as a
Class A misdemeanor, and criminal mischief as a Class B misdemeanor. In
exchange, his charge of Level 6 felony domestic battery was dismissed. At the
same time, Burdette also admitted that he had violated his probation under
Cause F6-042 by committing the three misdemeanor offenses to which he had
pled guilty.
[7] On February 16, 2017, the trial court held a combined sentencing hearing for
Burdette’s new convictions under Cause F6-1218 and his probation violation
under Cause F6-042. In Cause F6-1218, the trial court imposed an aggregate
sentence of one year. For Cause F6-042, the trial court revoked Burdette’s
probation and sentenced him to one year in the Indiana Department of
Correction (DOC). The sentences in Cause F6-1218 and F6-042 were ordered
to be served consecutively.
[8] Burdette now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). Accordingly, the trial court sets the conditions of probation and may
revoke the privilege if said conditions are violated. Id. When reviewing an
appeal from a probation revocation, our court considers only the evidence most
favorable to the trial court’s judgment, and we do not reweigh evidence or
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assess witness credibility. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App.
2006). In considering probation revocation, the trial court must first determine
that a violation of a probation condition has occurred; then, the trial court must
determine if the probation warrants revocation. Id.
[10] As recognized by our supreme court, if a trial court exercises its discretionary
grace to order probation in lieu of incarceration, it “should have considerable
leeway in deciding how to proceed. If this discretion were not afforded to trial
courts and sentences were scrutinized too severely on appeal, trial [courts]
might be less inclined to order probation to future defendants.” Prewitt, 878
N.E.2d at 188. As such, following a probation violation, a trial court’s
sentencing decision is reviewed under the abuse of discretion standard. Id. We
will find an abuse of discretion “where the [trial court’s] decision is clearly
against the logic and effect of the facts and circumstances.” Id.
[11] Here, Burdette does not dispute that he violated his probation by committing
new crimes. Rather, Burdette claims that the trial court abused its discretion by
ordering the entirety of his one-year probationary term to be executed in the
DOC. Pursuant to Indiana Code section 35-38-2-3(h),
[i]f the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
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(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.
[12] Although the trial court was statutorily authorized to order the one-year
commitment to the DOC, Burdette contends that he should have been re-
referred to home detention to serve out the suspended sentence. In support of
this, Burdette cites his successful completion of home detention following his
first probation violation. He also points to his claims during the sentencing
hearing that the altercation was the result of his ex-girlfriend “keeping his
children from him.” (Appellant’s Br. p. 9). Burdette asserts that his “crimes are
in the nature of an isolated, emotional outburst, and thus are not likely to
recur.” (Appellant’s Br. p. 9). He bids our court to “decide if a man’s ill-
conceived attempt to see his children is worth a year of freedom.” (Appellant’s
Br. p. 9).
[13] We find that the trial court’s chosen sanction was well within its discretionary
authority. Burdette initially received his suspended sentence in October of
2014. Not even a month later, Burdette committed new crimes, including the
same crime (resisting law enforcement) for which he was already on probation.
Burdette also failed to appear for four probation meetings and could not be
contacted; thus, he was alleged to have absconded. Nevertheless, the trial court
accorded leniency and sanctioned Burdette by ordering him to serve one year of
home detention, followed by one year of probation. Instead of taking
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advantage of this second chance, Burdette once again violated the conditions of
his probation by committing the crimes in F6-1218. Thus, he has not only
demonstrated an utter lack of respect for the authority of the court, he has made
it abundantly clear that he is incapable of serving his sentence while free in
society. Moreover, as the State points out, Burdette refused to cooperate with
the preparation of his pre-sentence investigation report and screening for an
alternative sentence, leaving the trial court with little information to support
any sanction other than an executed term.
[14] Finally, we note that we are unpersuaded by Burdette’s efforts to minimize the
severity of his crimes as a basis for a more favorable sanction. There is nothing
redeemable about Burdette’s conduct. He admitted that while on probation
under F6-042, he violated a protective order and subsequently got into an
altercation with his ex-girlfriend in front of their young children, which resulted
in a scratch to his ex-girlfriend and a shattered cell phone. He then attempted
to shift the blame to the ex-girlfriend for somehow “provok[ing]” him. (Tr. Vol.
II, p. 27). Regardless, the specific nature of his crime is irrelevant; the fact
remains that Burdette committed multiple new offenses while on probation.
Clearly, a term of incarceration is necessary in order for Burdette to
comprehend the importance of abiding by the law.
CONCLUSION
[15] Based on the foregoing, we conclude that the trial court acted within its
discretion by ordering Burdette to execute his suspended sentence following his
probation violation.
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[16] Affirmed.
[17] Najam, J. and Bradford, J. concur
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