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
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 hes gotten a driving while license
suspended and two, that hes 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 theallegations 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.
Appellants 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 defendants 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 Defendants 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.
Indiana Code Section 35-38-1-17 does not deprive a trial court of jurisdiction to
alter a defendants 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.
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 persons 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 Defendants 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), See footnote the trial court could have ordered Defendant to serve less than the entire amount of the four-year sentence originally suspendedthat is, the trial court could have done exactly what it did hereif only it had not revoked [Defendants] prob ation 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
courts 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 Legislatures intent here, we have previously observed that probation serves
the humane purposes of avoiding incarceration and of permitting the offender to meet
the offenders 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 Legislatures 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
The trial court, when initially considering Defendants 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 servedand 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 Defendants 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 possibilitiesthe record is insufficient for us to say that they reflect what went on herebut 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. See footnote 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.See footnote 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 Defendants 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.
We have reviewed the facts of the case and find the trial courts
reasoning for the sentence imposed to be persuasive.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.