Preview:

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.

FILED
Jul 22 2009, 9:46 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JASON W. BENNETT Bennett Boehning & Clary LLP Lafayette, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM DOUGLAS BELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 79A05-0812-CR-756

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-0801-FD-1 and 79D02-0301-FB-7

July 22, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary William Bell appeals his seven-year aggregate sentence for Class D felony possession of a schedule I controlled substance, Class D felony theft, and probation a violation. We affirm. Issues Bell raises two issues on appeal, which we restate as: I. whether the trial court abused its discretion in ordering Bell to serve the entire five years of his suspended sentence for the probation violation; and whether his two-year concurrent sentence for the Class D felonies is appropriate. Facts This case involves two cases that were consolidated for sentencing purposes. 1 On January 16, 2008, Bell was charged with eight Class D felonies under FD-1 while on probation for a prior burglary conviction under FB-7. As a result, on March 4, 2008, the probation office filed a petition to revoke his probation under FB-7. On September 25, 2008, Bell pled guilty to Class D felony possession of a schedule I controlled substance and Class D felony theft. The State dismissed the remaining six charges. Bell also admitted violating his probation under FB-7 by committing the offenses in FD-1. Pursuant to a plea agreement, sentencing was left to the trial courts discretion; however,

II.

The first case involves the offenses in Cause No. 79D02-0801-FD-1 ("FD-1"), i.e. Class D felony possession of a schedule I controlled substance and Class D felony theft. FD-1 triggered the second underlying case, i.e. probation revocation under Cause No. 79D02-0301-FB-7 ("FB-7").
1

2

the parties agreed that any executed sentence imposed would be no less than five years and no more than seven years for both cases. At the November 7, 2008 sentencing hearing, the trial court heard evidence on Bells mental health and substance abuse. Among the evidence considered was Dr. Jeffery Wendts examination report. Dr. Wendt opined that Bell suffered from Bipolar I Disorder, Posttraumatic Stress Disorder ("PTSD"), and Polysubstance Dependence. He recommended psychiatric, psychological, and substance abuse treatment as well as intensive inpatient substance treatment in the context of any sentence imposed. After hearing the evidence, the trial court expressed concern that Bell had not been considered for a forensic diversion program ("diversion program").2 As a result, the trial court continued the sentencing hearing and ordered the State to consider Bells eligibility for the diversion program. At the November 12, 2008 sentencing hearing, it was the States position that Bell was not eligible for the diversion program. As a result, the trial court determined that Bell was not eligible and accepted his guilty plea. The trial court sentenced Bell to serve all of his previously suspended five-year sentence for his probation violation under FB-7, and two years on each count in FD-1 to run concurrently. The sentences in each case are to run consecutively for a total of seven years executed. The trial court recommended

2

A forensic diversion program is a program designed to provide adults who have mental illnesses and/or addictive disorders that have been charged with a non-violent offense an opportunity to receive community treatment for the mental illness and/or addiction instead of, or in addition to, incarceration. See Ind. Code

Download William Douglas Bell v. State of Indiana.pdf

Indiana Law