MEMORANDUM DECISION
STATEMENT OF THE CASE
[1] Appellant-Defendant, Damon Norman (Norman), appeals following the trial courts revocation of his probation and imposition of 850 days of his previously suspended sentence.
[2] We affirm.
ISSUE
[3] Norman presents this court with one issue, which we restate as: Whether the trial court abused its discretion when it ordered him to serve 850 days of his previously suspended sentence in the Department of Correction (DOC) instead of on home detention.
FACTS AND PROCEDURAL HISTORY
[4] On May 19, 2022, the State filed an Information, charging Norman with Level 6 felony possession of methamphetamine, Level 6 felony unlawful possession of a syringe, and Class C misdemeanor possession of paraphernalia. On June 2, 2022, Norman pleaded guilty to the Level 6 felony unlawful possession of a syringe charge and was sentenced to 910 days, with 880 days suspended and 365 days on supervised probation. As additional terms of his probation, Norman was required to participate in the alcohol and drug treatment program ADAPT, complete forty hours of community service, and work towards his high school diploma or its equivalent.
[5] On April 25, 2023, the State filed its first petition to revoke Normans probation alleging that he had failed to comply with the recommendations of the ADAPT program to meet with his physician and attend therapy and that he had not completed his community services requirements. On May 9, 2023, the matter was continued, as the trial court received notice that Norman was participating in in-patient substance abuse treatment. On August 15, 2023, the State filed its second petition to revoke, encompassing the allegations of the first petition and additionally alleging that on August 1, 2023, Norman tested positive for alcohol and that Norman had failed to pursue his educational requirements. On August 24, 2023, Norman admitted the allegations of the States second petition. The trial court set a dispositional hearing for October 26, 2023, and released Norman on his own recognizance “to report to probation and get into compliance.” (Appellants App. Vol. II, p. 8). The trial court stated that it would allow Norman to have some time “to see if he can get [his] GED or something that would give me a reason not to just lock him up.” (Transcript p. 12).
[6] On September 22, 2023, Officer Samuel Miller (Officer Miller) of the Monroe County Police Department was involved in a chase of Normans vehicle on Interstate 69 south of Bloomington, Indiana, which at times exceeded 120 miles per hour. Officer Miller witnessed Norman weave among lanes at an excessive rate of speed and cut off a semi-trailer truck. Norman took the Highway 45/46 exit into Bloomington, drove through a residential yard and a drainage ditch, and continued until he encountered a roundabout at 17th Street. Norman entered the roundabout driving eighty-five miles per hour, went through the center of the roundabout, became airborne, and crashed. Once his vehicle came to rest, Norman initially obeyed Officer Millers commands to exit the drivers side of the vehicle and lie down. However, Norman then got up and fled on foot. Officer Miller apprehended Norman after a brief foot chase.
[7] On October 18, 2023, the State filed its third petition to revoke Normans probation based on its allegations that Norman had committed the new offenses of Level 6 felony resisting law enforcement by vehicle, Class A misdemeanor resisting law enforcement, and Class C misdemeanor reckless driving, among other new offenses, and that he had failed to timely notify his probation officer of the occurrence of the new offenses. On October 27, 2023, the State filed its fourth petition to revoke which included the allegations of the third petition and additionally alleged that Norman had failed to complete the ADAPT program and was behind in his probation and drug screen fees.
[8] On November 30, 2023, the trial court held an evidentiary hearing on the States fourth petition to revoke Normans probation. At the beginning of the hearing, Norman admitted that he had failed to complete the ADAPT program. The State presented the testimony of Officer Miller. At the conclusion of the evidence, the trial court found that the State had proved by a preponderance of the evidence that Norman had committed the new offenses of both Level 6 felony and Class A misdemeanor resisting law enforcement as well as Class C misdemeanor reckless driving. The trial court revoked Normans probation and proceeded to hear evidence regarding what sanction to impose. Normans boss at the fast-food restaurant where he was employed, Latisha Sullivan (Sullivan), testified that Norman was a model employee who had always showed up, worked hard, and mentored others.
[9] Norman represented to the court that he had been deemed qualified for community corrections. Norman requested that the trial court terminate his probation unsuccessfully and, if it ordered any executed time, that it be served on home detention. The State left the sanction to the trial courts discretion. The trial court noted the extreme and dangerous nature of the new offenses. The trial court also observed that it was “familiar with [Normans] criminal history” and that it was “also very familiar with the fact that [it] really tried to work with [Norman] throughout this probation[.]” (Tr. p. 44). The trial court ordered Norman to serve 850 days of his previously suspended sentence in the DOC.
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[10] Norman now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Norman appeals following the trial courts revocation of his probation and imposition of 850 days of his previously suspended sentence. We review both the trial courts revocation decision and its choice of sanction for an abuse of its discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when it misinterprets the law. Id.
[12] On appeal, Norman does not challenge the trial courts revocation decision or its order that he execute 850 days of his previously suspended sentence. Rather, Norman contends that he should have been allowed to execute his sentence on home detention. If a trial court revokes probation, it may continue the person on probation, extend the probationary period for not more than one year, or order the execution of all or part of the previously suspended sentence. I.C. § 35-38-2-3(h). The trial court has considerable leeway in deciding how to proceed in probation matters. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). If this were not so, trial court judges would be less inclined to order probation for defendants. Id. The selection of an appropriate sanction depends on the severity of the defendants violations. Heaton, 984 N.E.2d at 618. The trial courts consideration and imposition of any alternatives to incarceration are matters of grace left to its discretion. Comer v. State, 936 N.E.2d 1266, 1269 (Ind. Ct. App. 2010), trans. denied.
[13] Here, on August 24, 2023, Norman admitted the allegations of the States second petition to revoke his probation by failing to be compliant with the ADAPT program and his community service requirements, testing positive for alcohol use, and failing to pursue his educational requirements. The trial court showed Norman a great deal of leniency by releasing Norman on his own recognizance and setting his revocation dispositional hearing two months in the future to allow Norman time to become compliant with his probation terms and avoid being incarcerated. Instead of making the most of this leniency and conditional freedom, less than one month after his revocation hearing, Norman, who admittedly had not completed the ADAPT program, led the police on a high-speed chase which endangered other motorists and spilled into a residential neighborhood, where Norman crashed his vehicle and damaged public property. Norman then fled from an officer on foot.
[14] Norman argues that the trial court should have placed him on home detention to promote his rehabilitation and to allow him to maintain his employment, where he has been successful. However, while Normans job performance is commendable, we find no abuse of the trial courts discretion in declining to place him on home detention, where Norman committed multiple new offenses after the trial court had previously shown him substantial leniency and an opportunity to avoid being incarcerated.
[15] Norman also argues that the trial court abused its discretion when it considered his criminal record when determining what sanction to impose because there was no evidence of his criminal record before the trial court. The probation department did not file a presentence investigation report in either the underlying Level 6 felony possession of a syringe case or in the instant revocation proceeding. The State did not present any evidence at the revocation hearing regarding Normans criminal record, and the trial court did not take judicial notice of any records of previous criminal cases involving Norman. Nevertheless, the trial court explained that it was imposing 850 days of Normans previously suspended sentence to be executed in the DOC because of (1) the extreme nature of new offenses, (2) his criminal record, and (3) the leniency and opportunities for compliance Norman had been afforded while on probation.
[16] We conclude that it was an abuse of the trial courts discretion to consider Normans criminal record in the absence of any evidence. When a trial court considers an improper factor when sentencing a defendant for a criminal offense, we may reverse for resentencing if we cannot say with confidence that the trial court would have imposed the same sentence if it had considered only proper factors. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007). Applying that principle here and given the extreme nature of Normans new offenses, his squandering of the substantial leniency already accorded to him, and the “considerable leeway” allowed to trial courts in such matters, we are confident that the trial court would have ordered Norman to execute his sentence in the DOC, even without considering his criminal record. Prewitt, 878 N.E.2d at 188. As such, we do not disturb the trial courts Order sanctioning Norman for violating his probation.
CONCLUSION
[17] Based on the foregoing, we hold that any abuse of the trial courts discretion in sanctioning Norman does not require reversal, given the nature of Normans new offenses and the previous leniency accorded to him.
[18] Affirmed.
FOOTNOTES
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. January 2, 2024, the trial court received a notice from the DOC that Norman did not meet the criteria for DOC commitment. The notice provided in relevant part that a person who was convicted of a Level 6 felony may not be committed to the DOC unless the commitment is due to a probation revocation based on the commission of a new offense. The notice appears to be in error, as Normans probation was revoked based upon the commission of new offenses. We hereby take judicial notice of the DOCs offender locator database, which indicates that Norman is in DOC custody with a projected release date of December 14, 2024. (https:www.in.gov/apps/indcorrection/ofs last visited April 30, 2024). We assume for purposes of this appeal that Norman is incarcerated in the DOC.
Riley, Judge.
Brown, J. and Foley, J. concur