Attorney for Appellant Attorneys for Appellee
Kurt A. Young Steve Carter
Nashville, Indiana Attorney General of
Indiana
Richard C. Webster
Deputy Attorney General of
Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S02-0404-CR-152
Travis L. Stephens,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, No. 49G02-9810-CF-163152
The Honorable Robert Altice, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0304-
CR-330
_________________________________
December 10, 2004
Sullivan, Justice.
Defendant Travis Stephens was sentenced to ten years in prison, with
four years of that sentence suspended to probation. After serving the time
in prison, he violated the terms of his probation. The court revoked his
probation and ordered him to serve an additional three years. The Court of
Appeals held that when the court revoked his probation, it was required to
order him to serve the full four years originally suspended and nothing
less. We hold that the probation revocation statute permits a trial court
to order a defendant to serve less than the entire amount of a suspended
sentence when it revokes the defendant’s probation.
Background
Defendant Travis L. Stephens pled guilty to one count of Child
Molesting, a Class B felony.[1] On March 22, 2001, the trial court
sentenced him to ten years in prison, four years of which were suspended,
during which Defendant was placed on probation. Defendant’s probation
began in April, 2002.[2] One of the conditions of his probation was that
he attend psychosexual counseling. Defendant missed two counseling
sessions, after which a hearing was held and he was advised that if he
missed another session without permission, a Notice of Probation Violation
would be filed and a warrant would be issued for his arrest. Defendant
failed to attend another counseling session on October 5, 2002, and a
Notice of Probation Violation was filed on October 11, 2002.
At the probation violation hearing on March 21, 2003, Defendant
admitted that he had missed the counseling session and that while on
probation, he had been arrested and convicted of Driving While Suspended.
The State recommended that the court require Defendant to serve the entire
amount of the four-year sentence originally suspended. After hearing from
Defendant, the court found “that Mr. Stephens has admitted the violations
alleged here, one that he’s gotten a driving while license suspended and
two, that he’s failed to attend his psychosexual treatment.” Tr. at 11.
The court “revoke[d] his probation and . . . sentence[d] him to three years
in the department of corrections.” The court “g[ave] him credit because
he[] admitted the[]allegations and . . . jail time credit of ninety days.”
Id. at 11-12. The Chronological Case Summary for March 21, 2003, reflects
the following:
Court finding Defendant to have violated conditions of probation,
Court now revokes probation and ORDERS Defendant committed on sentence
heretofore imposed:
As to Count 001, Sentence imposed 3 Y[ears];
Executed 1095 D[ays]; Suspended 0 Y[ears].
[ . . . ]
Defendant ordered committed to Department of Correction and given 90
days credit time.
Appellant’s App. at 39.
As is apparent from the foregoing, the three-year sentence ordered by
the trial court was less than the entire amount of the four-year sentence
originally suspended. There is nothing on the record suggesting that the
State objected to this disposition.
Defendant appealed, arguing that the sentence of three years following
revocation of his probation was unreasonable given the nature of the
violations and his character. The State cross-appealed, arguing that if
the trial court revokes a defendant’s probation as it did here, it has no
jurisdiction to order the defendant to serve anything less than the entire
amount of the sentence originally suspended. The Court of Appeals rejected
Defendant’s claim; it went on to hold that when a trial court revokes
probation, it is required to order the defendant to serve the entire
sentence originally suspended. Stephens v. State, 801 N.E.2d 1288, 1292
(Ind. Ct. App. 2004). We granted transfer, 812 N.E.2d 801 (Ind. 2004), and
we now affirm the trial court.
Discussion
I
Our principal interest in this case is the authority of the trial
court to order a defendant to serve less than the entire amount of a
previously-suspended sentence upon revocation of probation. Before
reaching that issue, we dispose of three ancillary ones.
A
Defendant contends that his sentence is “unreasonable given the nature
of the violations and the character of the offender.” Br. of Appellant at
1, 5. The State contends that this is an impermissible collateral attack
on Defendant’s sentence. The State is correct that a defendant cannot
collaterally attack a sentence on appeal from a probation revocation. See
Schlichter v. State, 779 N.E.2d 1155 (Ind. 2002). But that is not
Defendant’s claim here. He challenges only the portion of the sentence
ordered to be served after his probation was revoked and not his original
sentence. A defendant is entitled to dispute on appeal the terms of a
sentence ordered to be served in a probation revocation proceeding that
differ from those terms originally imposed.
B
Defendant contends that the State has no authority to challenge the
fact that the trial court ordered him to serve a three-year term in prison
following revocation of his probation. Court rule and statute govern the
State’s right to appeal in criminal cases. “The State may not initiate an
appeal of a sentence, but may cross-appeal where provided by law.” Ind.
Appellate Rule 7(A). The Indiana Code governs appeals by the state.[3]
Here, the State appealed on grounds that the trial court did not have
authority to order the sentence it did because it lacked jurisdiction and
that the new sentence imposed was improper, neither of which are grounds
listed in the statute. However, there is a line of cases that hold that
when the State claims that a trial court failed to sentence a defendant in
accordance with statutory requirements, the State may raise that claim for
the first time on appeal. Rogers v. State, 383 N.E.2d 1035, 1036 (Ind.
1979); Lewis v. State, 769 N.E.2d 243, 247 n.5 (Ind. Ct. App. 2002),
transfer denied; Abron v. State, 591 N.E.2d 634, 638 (Ind. Ct. App. 1992),
transfer denied. That is essentially the State’s claim here, and so
precedent dictates that it is properly before us.[4]
C
The Court of Appeals appears to have viewed the ordering of the three-
year term following revocation of probation (rather than imposing the
original four-year suspended term) to have been a reduction in Defendant’s
sentence. Indiana Code Section 35-38-1-17[5] governs the authority of
trial courts to reduce or suspend sentences after a defendant begins
serving a sentence. The Court of Appeals said that because more than 365
days had elapsed since Defendant began serving his sentence, Indiana Code
Section 35-38-1-17 deprived the trial court of “jurisdiction over [a]
defendant insofar as the alteration of the defendant’s sentence is
concerned.” Stephens v. State, 801 N.E.2d 1288, 1290 (Ind. Ct. App. 2004).
Indiana Code Section 35-38-1-17 does not deprive a trial court of
jurisdiction to alter a defendant’s sentence once more than 365 days have
elapsed after the defendant began serving a sentence. As the text of
subsection (b) of the statute set forth in footnote 5 indicates, the
statute simply imposes additional conditions on the alteration of a
sentence if more than 365 days have passed. The most important of those
conditions is that the approval of the prosecuting attorney is required.
This was a probation revocation proceeding and the trial court clearly
had jurisdiction to proceed as it did. See Ind. Code § 35-38-2-3(a) (2004).
While we view probation revocation proceedings under Indiana Code Section
35-38-2-3(a) as separate and distinct from reduction proceedings under
Indiana Code Section 35-38-1-17, we do not rule out the possibility that
Indiana Code Section 35-38-1-17(b) might be implicated in some probation
revocation proceedings where the prosecuting attorney objects to the
sentence ordered following revocation. But there is no suggestion of that
happening here.
II
To reiterate, Defendant here was sentenced to ten years, six of which
were to be served in prison and four of which were suspended and to be
served on probation. After Defendant served his time in prison, but while
still on probation, he committed several probation violations. The trial
court concluded that the appropriate sanction for those violations was that
Defendant’s probation be revoked altogether and that he serve three years
in prison.
The Court of Appeals held that such a result was contrary to law. The
Court of Appeals reached this result by examining Indiana Code Section 35-
38-2-3(g), the “probation revocation” statute alluded to above. That
statute provides:
If 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:
(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; or
(3) order execution of the sentence that was suspended at the
time of initial sentencing.
I.C. § 35-38-2-3(g). The Court of Appeals held that because the trial
court “expressly revoked” Defendant’s probation, the only course available
to it was to order Defendant to serve the entire four years of the sentence
that was originally suspended. It reached that result by reading clause
(3) to provide “. . . the court must [rather than may] order execution of
the entire amount of the sentence that was suspended at the time of initial
sentencing.”
The Court of Appeals then turned its attention to another statute,
Indiana Code Section 35-38-2-2.3, which sets forth a list of permissible
conditions for probation. The court said that under the condition
contained in subsection (c),[6] the trial court could have ordered
Defendant to serve less than the entire amount of the four-year sentence
originally suspended—that is, the trial court could have done exactly what
it did here—if only it “had not revoked [Defendant’s] probation but had
opted to modify the conditions of his probation instead.” Stephens, 801
N.E.2d at 1292.
As the preceding paragraphs make clear, the Court of Appeals reads the
trial court’s authority following a probation violation to be a door that
swings one way: so long as the court keeps the defendant on probation, it
has flexibility as to the additional prison term it can order; if it
revokes probation, it has no such flexibility. For example, in the case
before us, the Court of Appeals says that the legislative scheme permits
the trial court to order an additional three-year term if it keeps
Defendant on probation, but it does not permit the trial court to order a
three-year term if it revokes probation.
This interpretation does not seem to us to be compelled by the
language of the statute. As noted above, the language of the statute says
that “the court may . . . order execution of the sentence that was
suspended at the time of initial sentencing.” I.C. § 35-38-2-3-(g)(3).
The Court of Appeals interpretation requires changing “may” to “must” and
modifying “sentence” with the adjective “entire.”
As to the Legislature’s intent here, we have previously observed that
probation serves the humane purposes of avoiding incarceration and of
permitting the offender to meet the offender’s financial obligations. Cox
v. State, 706 N.E.2d 547, 550 (Ind. 1999). In making this observation, we
also pointed out that for probation to be a viable option for Indiana
judges, judges must have the ability to move with alacrity to protect
public safety when adjudicated offenders violate the conditions of their
sentences. Id. The statutory scheme, it seems to us, reflects the
Legislature’s intent that trial courts have the flexibility both to use and
to terminate probation when appropriate. To be more explicit, the
statutory scheme seems to us to be sufficiently flexible to permit a trial
court to order the same amount of executed time following a probation
violation whether or not it actually revokes probation.
We can envision the following possible explanations for what went on
in this case:
• The trial court, when initially considering Defendant’s sentence,
concluded that nine years executed time would be an appropriate
sentence but nevertheless suspended a portion of the time, perhaps to
assist the Defendant in meeting his financial obligations. However,
in return for the reduction in the amount of executed time from nine
to six years, the court concluded that four years of probation would
be required after the sentence was served—and so imposed a total
sentence of ten years. Once the Defendant demonstrated that he was
not an appropriate candidate for probation by violating its terms, the
trial court reverted to its original conclusion that a total of nine
years executed time was the appropriate amount.
• The trial court, having concluded that Defendant’s probation should be
revoked, nevertheless found that the nature of the probation
violations was not so great as to warrant an additional four-year
term. As to whether Defendant should be placed on probation again
after serving the additional time, the court concluded that the cost
to an over-burdened probation system of gearing up for and supervising
Defendant for one year would be far greater than the public safety
risk posed.
• While Defendant is not entitled to any credit toward sentence of the
time spent on probation once he violated its conditions, the trial
court decided to give him some credit for his relatively good
behavior.
These are all hypothetical possibilities—the record is insufficient
for us to say that they reflect what went on here—but we think they
illustrate some of the wide variety of considerations that the Legislature
intends for Indiana judges to reflect upon during the thousands of
sentencing and probation revocation proceedings over which they preside
each year.[7] That this, in fact, occurs is illustrated by the many
reported appellate cases in which trial courts had ordered less than the
entire amount suspended sentence after revoking probation.[8] See Carter
v. State, 706 N.E.2d 552, 553 (Ind. 1999); McKnight v. State, 787 N.E.2d
888, 891, 893 (Ind. Ct. App. 2003); Brattain v. State, 777 N.E.2d 774, 775-
78 (Ind. Ct. App. 2002); Kincaid v. State, 736 N.E.2d 1257, 1258-59 (Ind.
Ct. App. 2000); Louth v. State, 705 N.E.2d 1053, 1054, 1056, 1060 (Ind. Ct.
App. 1999).
We hold that a trial court has the statutory authority to order
executed time following revocation of probation that is less than the
length of the sentence originally suspended, so long as, when combined with
the executed time previously ordered, the total sentence is not less than
the statutory minimum. Here, the three-year term imposed following
revocation of Defendant’s probation, when combined with the six-year term
previously imposed (and satisfied), is greater than the statutory minimum
(six years) for a Class B felony. I.C. § 35-50-2-5. The trial court had
authority to order the three-year term.
III
In the Court of Appeals, Defendant claimed that the additional three-
year sentence for his probation violations was “unreasonable given the
nature of the violations and the character of the offender.” Br. of
Appellant at 1, 5. Given the outcome in the Court of Appeals, it is not
surprising that he does not review this argument to us on transfer.
Nevertheless, under Indiana Appellate Rule 58(A), once transfer is granted,
this court has jurisdiction over all issues in the appeal as if the case
was initially filed in this court.
We have reviewed the facts of the case and find the trial court’s
reasoning for the sentence imposed to be persuasive.
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-3(a) (2004).
[2] He had accumulated 468 days of credit for time served prior to
sentencing.
[3] Indiana Code Section 35-38-4-2 provides:
Appeals to the supreme court or to the court of appeals, if the court
rules so provide, may be taken by the state in the following cases:
(1) From an order granting a motion to dismiss an indictment or
information.
(2) From an order or judgment for the defendant, upon his motion
for discharge because of delay of his trial not caused by his
act, or upon his plea of former jeopardy, presented and ruled
upon prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is
acquitted.
(5) From an order granting a motion to suppress evidence, if the
ultimate effect of the order is to preclude further prosecution.
(6) From any interlocutory order if the trial court certifies
and the court on appeal or a judge thereof finds on petition
that:
(A) the appellant will suffer substantial expense, damage, or
injury if the order is erroneous and the determination
thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the early
determination of which will promote a more orderly
disposition of the case; or
(C) the remedy by appeal after judgment is otherwise
inadequate.
I.C. § 35-38-4-2.
[4] Defendant also claims that the State waived this argument by failing to
raise it in the trial court. Given our disposition of the case, we do not
address this argument.
[5] Indiana Code Section 35-38-1-17 provides in part:
(a) Within three hundred sixty-five (365) days after . . . the
defendant begins serving his sentence[, . . . ] the court may reduce
or suspend the sentence. The court must incorporate its reasons in
the record.
(b) If more than three hundred sixty-five (365) days have
elapsed since the defendant began serving the sentence and after a
hearing at which the convicted person is present, the court may reduce
or suspend the sentence, subject to the approval of the prosecuting
attorney. However, if in a sentencing hearing for a defendant
conducted after June 30, 2001, the court could have placed the
defendant in a community corrections program as an alternative to
commitment to the department of correction, the court may modify the
defendant’s sentence under this section without the approval of the
prosecuting attorney to place the defendant in a community corrections
program under I.C. 35-38-2.6.
I.C. § 35-38-1-17.
[6] “As a condition of probation, the court may require that the person
serve a term of imprisonment in an appropriate facility at the time or
intervals (consecutive or intermittent) within the period of probation the
court determines.” I.C. § 35-38-2-2.3(c).
[7] On the felony side alone, Indiana courts ordered probation more than
29,000 times in 2003—and revoked it more than 6,500 times. Indiana Supreme
Court, Division of State Court Administration, Indiana Judicial Service
Report-Probation (2003).
[8] In none of these cases did the State question the trial court’s
authority to order such a sentence.