MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jun 07 2018, 7:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General
Kokomo, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Davenport, June 7, 2018
Appellant-Defendant, Court of Appeals Case No.
34A04-1712-CR-2983
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray,
Appellee-Plaintiff Judge
Trial Court Cause No.
34C01-1008-FD-170
Vaidik, Chief Judge.
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Case Summary
[1] Steven Davenport appeals the trial court’s order requiring him to serve the
remainder of his suspended sentence in the Department of Correction for
violating his probation. Because Davenport had violated probation on three
previous occasions and was given multiple chances to no avail, we find no
abuse of discretion and affirm the trial court.
Facts and Procedural History
[2] Davenport pled guilty to child solicitation, and the trial court imposed a
sentence of three years, with one year executed and two years suspended to
probation.
[3] On October 5, 2017, the State filed a Petition to Revoke Suspended Sentence,
alleging, among other things, that Davenport violated his probation by failing to
report to the probation department on October 2. Tr. Vol. II pp. 11-12. This
was the sixth petition to revoke Davenport’s probation that the State had filed
in this case. Two of the earlier petitions were dismissed, one because he pled
guilty to the crime that led to the filing of the petition. The other three petitions
resulted in Davenport serving some of his suspended sentence. See Appellant’s
App. Vol. II pp. 35-36, 41-42. At the hearing, Davenport’s probation officer
testified that Davenport was required to check-in daily at the courthouse and to
report to her once a week. Davenport admitted that he did not report on
October 2; however, he claimed that neck pain stemming from a broken jaw
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that he sustained in May 2017 “prevented [him] from walking to probation, to
the courthouse.” Tr. Vol. II p. 27. Davenport’s probation officer testified that
Davenport had never told her that his injury prevented him from reporting to
probation. Id. at 17.
[4] The trial court found that Davenport violated his probation by failing to report
on October 2:
Mr. Davenport himself has admitted that he[ ] failed to [report on
October 2]. I don’t think any of the reasons that he’s given here
or other evidence he’s submitted is a justifiable reason why he
couldn’t report, couldn’t do the check-in . . . . You know, all this
issue about, you know, the injuries that he suffered and so on and
so forth, perhaps the Court would be inclined to be more lenient
if this was the first time he had missed. It is not . . . . I don’t
believe Mr. Davenport is able to comply with the Rules of
Probation. I’m going to find just on number one, his failure to
report, which he was required to do daily, that he failed to do so.
He’s had a history of non-compliance in this case. Find the
Petition to Revoke Suspended Sentence granted.
Id. at 27-28. The trial court ordered him to serve the balance of his suspended
sentence, which amounted to 460 days, in the DOC.
[5] Davenport now appeals.
Discussion and Decision
[6] Probation revocation is a two-step process. First, the trial court must determine
that a violation of a condition of probation actually occurred. Woods v. State,
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892 N.E.2d 637, 640 (Ind. 2008). Second, the court must determine if the
violation warrants revocation of probation. Id. When a probationer admits to
the violation, the court can then proceed to the second step of the inquiry and
determine whether the violation warrants revocation. Id. The decision to
revoke probation lies within the sound discretion of the trial court, and if there
is substantial evidence of probative value to support the trial court’s decision
that a defendant has violated a term of probation, the reviewing court will
affirm its decision to revoke probation. Id. at 639-40.
[7] Davenport concedes that he violated his probation. Appellant’s Br. p. 5. He
argues, however, that the trial court abused its discretion in sentencing him to
the balance of his suspended sentence in the DOC because his violation was
attributable to his medical condition. Id. at 6. He asks us to order the balance
of his suspended sentence to be served on community corrections through work
release, in-home detention, or other community-based monitoring because it
would “increase the level of supervision he faces within the community.” Id. at
7.
[8] However, the trial court has already given Davenport multiple chances. He has
violated his probation in this case three previous times, served small periods of
time for these violations, and has returned to probation, only to violate it again.
Therefore, in light of the opportunities that Davenport has been given in this
case, the trial court did not abuse its discretion in ordering Davenport to serve
the balance of his suspended sentence in the DOC, as opposed to on
community corrections, for violating probation for a fourth time in this case.
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[9] Affirmed.
Barnes, J., and Pyle, J., concur.
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