Robert A. Ellington, III v. State of Indiana (mem. dec.)
84A01-1608-CR-1755
| Ind. Ct. App. | Mar 22, 2017Background
- Robert A. Ellington III had a 2012 conviction (Class B felony dealing cocaine; Class D felony dealing marijuana) with a ten-year sentence, balance suspended to probation.
- In 2015 Ellington was charged with new drug offenses; the 2012 probation was revoked and the cases were consolidated and resolved by plea agreement.
- Plea agreement: Ellington pled guilty to a Level 5 felony (dealing marijuana) in the 2015 case (four-year sentence) and admitted probation violation in the 2012 case, agreeing to execute the remaining six-year suspended term; sentences to run consecutively.
- At sentencing Ellington sought placement in community corrections for the six-year term and presented a community corrections evaluation, payment receipt, letters of support, and family testimony; the State sought execution in the Department of Correction (DOC) pending completion of a Purposeful Incarceration program.
- The trial court accepted the plea, suspended the four-year term to probation, and committed Ellington to DOC for the six-year balance, with the balance to be suspended to probation upon successful completion of the Purposeful Incarceration program.
Issues
| Issue | State's Argument | Ellington's Argument | Held |
|---|---|---|---|
| Whether the appellate court may revise the sentence under Appellate Rule 7(B) as inappropriate given nature of offense and character | 7(B) revision is unavailable for probation-violation sanctions; DOC placement appropriate to reform character | 7(B) revision should apply; DOC placement is inappropriate and community corrections is proper | 7(B) revision unavailable for probation revocation sentences; claim fails |
| Whether trial court abused its discretion in committing Ellington to DOC pending Purposeful Incarceration completion | Trial court acted within discretion given aggravators and probation history | Placement in community corrections was supported by evaluation and letters; DOC placement was excessive | Issue was waived for lack of an abuse-of-discretion argument; even if reviewed, no abuse of discretion found; sentence affirmed |
Key Cases Cited
- Prewitt v. State, 878 N.E.2d 184 (Ind. 2007) (Appellate Rule 7(B) is not the correct standard for reviewing sanctions imposed for probation violations)
- Jones v. State, 885 N.E.2d 1286 (Ind. 2008) (sentences imposed for probation violations reviewed for abuse of discretion)
- Jackson v. State, 992 N.E.2d 926 (Ind. Ct. App. 2013) (issues waived when not argued cogently on appeal)
- Berry v. State, 904 N.E.2d 365 (Ind. Ct. App. 2009) (standard of review for revocation sentences is abuse of discretion; Anglemyer modification analysis not applicable)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (articulates standards for sentencing review generally)