Stephens v. State

• Citation: 818 N.E.2d 936
• Decision Date: 10 December 2004
• Docket Number: No. 49S02-0404-CR-152.,49S02-0404-CR-152.
• Parties: Travis L. STEPHENS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

818 N.E.2d 936

Travis L. STEPHENS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S02-0404-CR-152.

Supreme Court of Indiana.

December 10, 2004.

Kurt A. Young, Nashville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General of Indiana, Attorneys for Appellee.

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, 270 Ind. 189, 383 N.E.2d 1035, 1036 (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 35-38-1-17⁵ 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...