Samantha J. Perez v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 17 2016, 8:40 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samantha J. Perez February 17, 2016
Appellant-Defendant, Court of Appeals Case No.
36A01-1507-CR-814
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable William E. Vance,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
36C01-1212-FC-81
Mathias, Judge.
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[1] Samantha Perez (“Perez”) appeals her probation revocation and argues that the
Jackson Circuit Court abused its discretion when it ordered her to serve the
balance of the previously suspended three-year sentence in the Department of
Correction.
[2] We affirm.
Facts and Procedural History
[3] On March 27, 2013, Perez entered into a plea agreement agreeing to plead
guilty to one count of Class C felony forgery. In exchange for her guilty plea,
the State agreed to dismiss eight additional Class C felony forgery counts.
Pursuant to the terms of the plea agreement, on June 2, 2013, Perez was
ordered to serve a four-year sentence, with one year served in home detention
as a direct commitment through community corrections and the remaining
three years suspended to supervised probation. Perez also agreed to pay
restitution to the victims of the nine charged forgeries.
[4] On October 14, 2013, the State filed a petition to revoke Perez’s home detention
after she was charged with possessing methamphetamine, marijuana, and drug
paraphernalia. A second petition was filed shortly thereafter alleging that Perez
left her residence without permission, failed to maintain steady employment,
failed to remain current on her home detention fees, and had an individual in
her home who was wanted on an active arrest warrant.
[5] On January 29, 2014, Perez admitted that she violated the terms of her home
detention and agreed that she would serve the remainder of her home detention
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sentence in a correctional facility. In exchange, the State agreed to dismiss its
October 14, 2013, petition to revoke Perez’s probation. After she was released
from incarceration, Perez began serving her three-year term of supervised
probation.
[6] On March 30, 2015, the State filed petition to revoke Perez’s probation alleging
that Perez violated her probation by committing Class A misdemeanor theft.
Specifically, the allegation was that she shoplifted a hairbrush and a flashlight.
Perez admitted that she violated her probation. On June 17, 2015, the trial court
ordered Perez to serve the balance of her previously suspended three-year
sentence in the Department of Correction. Perez now appeals.
Discussion and Decision
[7] Perez argues that the trial court abused its discretion when it revoked her
probation and ordered her to serve the balance of her previously suspended
three-year sentence. “Probation is a matter of grace left to trial court discretion,
not a right to which a criminal defendant is entitled.” Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007). Once a court has exercised this grace, the judge
has considerable leeway in deciding how to proceed. Id. It is thus within the
discretion of the court to determine the conditions of the defendant’s placement
and to revoke that placement if those conditions are violated. Heaton v. State,
984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs where the
decision is clearly against the logic and effects of the facts and circumstances
before the court. Prewitt, 878 N.E.2d at 188.
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[8] Once a trial court has determined that probation has been violated, it may
continue the defendant on probation, extend the probationary period for not
more than one year beyond the original period, or order all or part of the
previously suspended sentence to be executed. Ind. Code § 35-38-2-3(h). The
imposition of an entire suspended sentence is within the trial court’s discretion.
See Sanders v. State, 825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005), trans. denied.
[9] Perez claims that ordering her to serve the balance of her previously suspended
three-year sentence, i.e., the most severe sanction allowed under Indiana Code
section 35-38-2-3(h), is not warranted because she has a minimal criminal
history, she admitted to the violation, and she expressed remorse. Perez also
argues that she has attempted to maintain employment but was let go from her
job. She claims that she is willing to make restitution but has not had the ability
to do so. Perez also has four children, and at the revocation hearing, she argued
that her incarceration would be a hardship for them.
[10] The trial court doubted Perez’s claim that she had been employed because no
evidence was presented that would have corroborated her claim. In addition,
Perez’s inability to comply with the conditions of her home detention and
probation is well documented in this case. The trial court noted and the record
establishes that Perez has had numerous chances to prove that she is able to
successfully complete her sentence in home detention and according to the
terms of her probation. Given the facts and circumstances of this case, and
particularly the fact that Perez’s most recent violation of a condition of her
probation was committing theft, we conclude that the trial court acted within its
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discretion when it ordered Perez to serve the balance of her previously
suspended three-year sentence.
[11] Affirmed.
Kirsch, J., and Brown, J., concur.
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