Leslie J. Vickers v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 26 2018, 6:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leslie J. Vickers, November 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-932
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-1210-FC-226
Mathias, Judge.
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[1] Leslie J. Vickers (“Vickers”) appeals the Dearborn Superior Court’s revocation
of his probation, arguing the trial court abused its discretion when it ordered
him to serve six years of his previously suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] In May of 2013, Vickers pleaded guilty to Class C felony forgery. He had made
approximately $650 of unauthorized purchases using another individual’s debit
card. At the time of his forgery conviction, Vickers’s criminal history included a
2013 active warrant for dealing less than two grams of heroin, a 2012 active
warrant for fraudulent use of a credit card, a 2012 conviction for operating on a
suspended driver’s license, an operating while intoxicated conviction, two
possession of marijuana convictions, and a 2007 dealing in marijuana
conviction.
[4] The trial court accepted the plea and on June 4, 2013, imposed a sentence of
eight years imprisonment with seven years suspended to probation. In April of
2014, his probation was transferred to Kentucky.
[5] In August of 2015, the State of Indiana requested revocation of Vickers’s
probation in this matter due to several alleged violations. Specifically, the State
alleged that Vickers was indicted in Hamilton County, Ohio for committing a
level four felony vehicular assault and a level three felony aggravated vehicular
assault. He had overdosed on heroin and struck another vehicle, causing injury
to another driver. Vickers pleaded guilty to a level three felony aggravated
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vehicular assault and was sentenced to two years imprisonment in the Ohio
Department of Correction. In its petition for revocation, the State also alleged
that Vickers had left Kentucky without permission and that he had not resided
at the location approved by probation for approximately six weeks prior to his
arrest.
[6] After Vickers completed his Ohio sentence, the trial court held a hearing in this
matter, and Vickers admitted he had violated his probation as alleged. The trial
court revoked Vickers’s probation and ordered him to serve six years of his
previously suspended sentence, with the seventh year to be served on release.
Vickers appeals, arguing that the trial court abused its discretion.
Discussion and Decision
[7] Probation is a matter of grace left to the trial court’s discretion, not a right to
which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188
(Ind. 2007). The trial court determines the conditions of probation and may
revoke probation if the conditions are violated. Id. On appeal, “a trial court’s
sentencing decisions for probation violations are reviewable using the abuse of
discretion standard.” Id. An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Id. Further, on appeal, we consider only the evidence most
favorable to the judgment without reweighing that evidence or judging the
credibility of the witnesses. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). If
there is substantial evidence of probative value to support the trial court’s
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decision that a defendant has violated any terms of probation, the reviewing
court will affirm its decision to revoke probation. Id.[8] Vickers primarily argues that Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App.
2016), and the line of cases upon which it relies are persuasive. We disagree. In
Johnson, our court determined that a trial court abused its discretion by ordering
a defendant to serve the entirety of the remaining portion of his executed
sentence in the Department of Correction (“DOC”) for being “out of place” for
short times and moving GPS equipment while on electronic monitoring
because those violations were minor in relation to the severity of the revocation
of probation. Id. at 1231. In Sullivan v. State, 56 N.E.3d 1157 (Ind. Ct. App.
2016), our court found the trial court abused its discretion by ordering an
offender to serve the remainder of his sentence executed in the DOC for the
failure to report to his community corrections placement because he was
hospitalized at a mental health facility. Id. at 1162. In Ripps v. State, the
violation was technical in nature, and it was unclear if he had violated the terms
of his sex offender probation by committing a new offense by living near a
public park and youth center because he was residing in an assisted care facility
due to a medical condition. 968 N.E.2d 323, 328 (Ind. Ct. App. 2012). In
Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), we reversed the trial
court’s probation revocation due to its reliance on factors outside of the
probation revocation allegations. Id. at 1187–88.
[9] Here, Vickers not only left Kentucky without permission and failed to reside at
his approved residence for six weeks, he committed Level 3 felony aggravated
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assault for injuring someone while he was driving during an overdose. We
cannot agree with Vickers that he committed only a minor or technical
violation. Nor does the record show that the trial court relied on evidence or
allegations outside of the revocation proceedings. Accordingly, we find no
abuse of discretion by the trial court.
[10] Vickers also alleges that several factors are mitigating to his probation
violations. Specifically, Vickers points to his acceptance of responsibility for the
violations, the substance abuse programming he completed as well as the
employment he held while incarcerated in the Ohio Department of Corrections.
Vickers also testified that he intended to work on a road project in Kentucky
upon release. Any argument that these factors should outweigh the severity of
his probation violations amount to a request to reweigh the evidence, which is
not our role on appellate review.
Conclusion
[11] Because the trial court relied on sufficient evidence that Vickers’s violations
were severe, and because we will not reweigh the evidence, we affirm the trial
court’s revocation of Vickers’s probation.
[12] Affirmed.
Bailey, J., and Bradford, J., concur.
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