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Moore v. State

Court of Appeals of Indiana

May 4, 2018

Allan Moore, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G02-1501-F5-903

          ATTORNEY FOR APPELLANT Ellen M. O'Connor Marion County Public Defender Agency Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

          May, Judge.

         [¶1] Allan Moore appeals the revocation of his probation and the order that he serve his suspended sentence. He argues the manner in which his probation was revoked violated Indiana Code section 35-38-2-3 and his right to due process. We affirm.

          Facts and Procedural History

         [¶2] On October 28, 2015, Moore pled guilty to Level 5 felony burglary.[1] The court imposed a sentence of 1137 days, with 433 days executed, 704 days suspended, and 365 days on probation. Because Moore had served 325 days and earned 108 credit days before sentencing, he was released to probation upon sentencing.

         [¶3] On December 16, 2015, the State filed a first notice of probation violation that alleged Moore was charged on December 10, 2015, with Class B misdemeanor possession of marijuana[2] for alleged possession that occurred on December 7, 2015. The notice indicated Moore was being held in Marion County Jail.

         [¶4] On December 28, 2015, the State filed an amended notice of probation violation indicating that, while Moore's charge of marijuana possession was still pending, Moore had been released from custody on December 15, 2015. The notice also alleged Moore was arrested on December 20, 2015, and charged the next day with Level 3 felony robbery, [3] Level 5 felony carrying a handgun after conviction of a felony, [4] Level 6 felony auto theft, [5] Level 6 felony resisting law enforcement, [6] and Class A misdemeanor resisting law enforcement.[7] Moore "remain[ed] incarcerated" for those charges when the amended notice of probation violation was filed on December 28. (Appellant's App. Vol. 2 at 110.)

         [¶5] On February 25, 2016, the State filed a second amended notice of probation violation that alleged: (1) Moore had pled guilty to his Class B misdemeanor possession of marijuana charge and was sentenced to time served; (2) Moore remained in jail for his December 21 charges of four felonies and a misdemeanor, which were scheduled for trial in April 2016; and (3) on January 29, 2016, the State charged Moore with Class A misdemeanor battery resulting in bodily injury[8] for an incident that allegedly occurred on January 24, 2016.

         [¶6] On May 11, 2017, Moore and the State entered an agreement as to Moore's

         December 21, 2015, charges: Moore would plead guilty to Level 3 felony armed robbery, and the State would dismiss the other four counts. Moore and the State further agreed the court would impose the following sentence:

11 year sentence w/5 years suspended. 4 years executed in the Department of Corrections. 2 Years Community Corrections. 2 years probation. Restitution to [T.C.] in an amount TBD. No contact with [T.C.]. All other aspects of the Defendant's sentence to be left to the discretion of the Court, after argument by the parties. Should the Defendant violate the terms and conditions of his probation, the Court may order any or all of the suspended time to be executed.

(Id. at 113) (errors in original) (emphasis removed).

         [¶7] When Moore was in court to submit that plea agreement and plead guilty to armed robbery, the following exchange occurred:

THE COURT: Now, also if you are out on probation . . . for a case and you commit a new offense, then any sentencing between all those cases would have to be served consecutively to each other, one after the other. Do you understand that?
THE DEFENDANT: Yes ma'am.
THE COURT: And it looks like you have a probation matter that we'll have to be determining at the time of sentencing, correct?
THE DEFENDANT: Yes ma'am. (Supplemental Tr. Vol. II at 8-9.)

         [¶8] Then, on July 6, 2017, when the parties appeared for sentencing on the armed robbery and to deal with the alleged ...


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