Lori L. Cobb v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 13 2015, 8:12 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lori L. Cobb, August 13, 2015
Appellant-Defendant, Court of Appeals Cause No.
03A01-1502-CR-73
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Stephen R.
Heimann, Judge
Appellee-Plaintiff
Cause No. 03C01-1010-FA-2220
Najam, Judge.
Statement of the Case
[1] Lori L. Cobb appeals the trial court’s order that she serve her previously
suspended sentence after the court revoked her probation. Cobb raises a single
Court of Appeals of Indiana | Memorandum Opinion 03A01-1502-CR-73 | August 13, 2015 Page 1 of 4
issue for our review, namely, whether the trial court abused its discretion when
it ordered Cobb to serve her previously suspended sentence. We affirm.
Facts and Procedural History1
[2] On December 29, 2010, Cobb pleaded guilty to dealing in cocaine, as a Class B
felony. Thereafter, the trial court sentenced Cobb to eleven years in the
Department of Correction (DOC), with five years suspended to probation.
However, on September 1, 2011, upon Cobb’s request the court modified her
sentence and placed her in a community transition program effective that same
date. The court then modified the conditions of Cobb’s probation and extended
her probationary term.
[3] On December 4, 2014, the State filed its notice of probation violation, which it
later amended. The court held a hearing on the State’s amended notice on
January 26, 2015. At that hearing, Cobb admitted to each of the State’s alleged
violations.
[4] The court revoked Cobb’s probation and ordered her to serve “the balance of
her sentence of 11 years in the DOC. [Cobb] receives credit for 152 actual days
1
We note that Cobb’s brief on appeal omits a statement of facts.
Court of Appeals of Indiana | Memorandum Opinion 03A01-1502-CR-73 | August 13, 2015 Page 2 of 4
(10/20/10 to 1/25/11 and 12/3/14 to 1/25/15).”2 Appellant’s App. at 6. This
appeal ensued.
Discussion and Decision
[5] Cobb appeals the trial court’s order that she serve the balance of her previously
suspended sentence. As our supreme court has explained:
Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. The trial court
determines the conditions of probation and may revoke
probation if the conditions are violated. Once a trial court has
exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse
of discretion standard. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and
circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).
[6] Cobb’s only argument on appeal is that the trial court erred when it ordered her
to serve the balance of her sentence because the court did not give mitigating
weight to her admissions to the State’s allegations of her probation violations.
2
It is not clear why Cobb did not receive credit for time she apparently served between January 25, 2011,
and September 1, 2011, but Cobb does not raise this possible issue on appeal, and the lack of facts in her brief
and potentially relevant documents in the appendix does not enable this court to assess this possible issue.
Court of Appeals of Indiana | Memorandum Opinion 03A01-1502-CR-73 | August 13, 2015 Page 3 of 4
But “trial courts are not required to balance aggravating or mitigating
circumstances when imposing sentence in a probation revocation proceeding.”
Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied. In any
event, nothing in Cobb’s argument on appeal demonstrates that her admissions
were entitled to mitigating weight. Cobb was knowingly in the company of
other people on probation, possessed drug paraphernalia, tested positive for
methamphetamine and cocaine, and failed to pay fees, costs, and restitution as
ordered. And she made her admissions on the day of the hearing, and the
State’s evidence (e.g., a failed drug test) against her was clear. E.g., Wells v.
State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. At best, Cobb’s
argument on appeal is a request for this court to reweigh the evidence before the
trial court, which we will not do. We cannot say that the trial court abused its
discretion when it ordered Cobb to serve her previously suspended sentence.
[7] Affirmed.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Opinion 03A01-1502-CR-73 | August 13, 2015 Page 4 of 4