Court of Appeals of Indiana | Memorandum Decision 32A01

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.



### A TTORNEY FOR 

### A PPELLANT Scott Knierim Danville, Indiana 

### A TTORNEY S FOR 

### A PPELLEE Curtis T. Hill, Jr. At torney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Bradly Paul Canter , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff March 23, 2017 Court of Appeals Ca se No. 32A01

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- 1289 Appeal from the Hendricks Superior Court The Honorable Stephenie LeMay

Luken, Judge Trial Court Cause No. 32D05

- 1411

- F3

- 10



### May, Judge.

[1] 

### Bradley Paul Canter appeals the trial court’s imposition, for his probation violations, of the 730 days remaining on his suspended sentence. Because theCourt of Appeals of Indiana | Memorandum Decision 32A01

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### type of review Canter requests is not available to challenge the sanction imposed following probation violatio n, w e affirm.



# Facts and Procedural History

[2] 

### On May 14, 2015 , Canter pled guilty to Level 5 felony robbery. 1 

### He was sentenced to four

- years impriso nment , with three years suspended to probation. On February 9, 2016, the State filed a notice of probation violation, alleging he had committed new criminal offenses, had used marijuana, and had “failed to complete substance abuse counseling as recommende d by [his] Probation Officer.” (App. Vol. 2 at 13.) O n March 8, 2016, the State filed a subsequent notice of probation violation allegin g Canter had failed to provide contact information to his Probation Officer.

[3] 

### At the evidentiary hearing on May 18, 20 16, Hendricks County Probation Department Officer Megan Caruso testified Canter had not provided her with a valid address or a working phone number, he had not mad e the appointments required to qualif

y for Work Release or Home Deten tion, he failed a urinal ysis due to marijuana use , and he failed to complete the substance abuse counseling

. Canter testified he had smoked marijuana “approximately three (3) times.” (Tr. at 22.)

1 Ind. Code § 35

- 42

- 5

- 1 ( 2014 )

.Court of Appeals of Indiana | Memorandum Decision 32A01

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[4] 

### Based on the evidence presented, the trial court found the State had proven all the allegations except the new criminal offense , as that matter had not gone to trial at the time of the hearing. The tri al court then terminated Canter’s probation and ordered him to serve the remain ing 730 days of h is sentence at the I ndiana Department of Correction

.



# Discussion and Decision

[5] 

### Canter’s sole argument on appeal is that “the sentence of 730 days to the Indiana Department of Corrections [ sic] was inappropriate under Indiana Appellate Rule 7(B).” (Appellant’s Br. at 7.)
Rule 7(B) authorizes appellate review and revision of “a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The Rule permits an appellate determination of the appropriateness of a criminal sentence and implements the permissive jurisdiction granted in Article 7, Section 4 of the Indiana Constitution: “The Supreme Court shall have, in all appeals of criminal cases, t he power . . . to review and revise the sentence imposed.”
As this Court has recently held, the appellate evaluation of whether a trial court’s sanctions are “inappropriate in light of the nature of the offense and the character of the offender” is not the correct standard to apply when reviewing a trial court’s actions in a post

- sentence probation violation proceeding. Prewitt v. State , 878 N.E.2d 184, 187

- 88 (Ind. 2007). A trial court’s actions in a post

- sentence probation violation proceeding is not a criminal sentence as contemplated by the rule. The review and revise remedy of App. R. 7(B) is not available.Court of Appeals of Indiana | Memorandum Decision 32A01

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### Jones v. State , 885 N.E.2d 1286, 1289

- 90 (Ind. 2008). Because Canter’s only argument on appeal is unavailable, 2 

### we affirm the trial court’s impo sition of the 730 days remaining on Canter’s sentence.

[6] 

### Affirmed.

Najam, J., and Bailey, J., concur.

2 Sanctions for probation violations “are subject to appellate review for abuse of discretion.” Jones , 885 N.E.2d at 1290. Canter has not argued the trial court abused it s dis cretion and, thus, any such argument is waived for appeal. Waiver notwithstanding, we would not find an abuse of discretion in the imposition of 730 days, as the State provided sufficient evidence Canter violated his probation

. See , e.g ., Crump v. State , 740 N.E.2d 564, 573 (Ind. Ct. App. 2000) (court did not abuse discretion in ordering Crump to serve eight years that had been suspended because court had properly found his violation and revoked probation ), trans. denied ; see also Ind. Code § 35

- 38

- 2

- 3 ( permitting court to “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing” when revoking probation).