Donald A. Wood v. State of Indiana ( 2014 )

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. Jan 31 2014, 9:16 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONALD A. WOOD, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1306-CR-288
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Jonathan N. Cleary, Judge
Cause No. 15D01-0912-FD-260
January 31, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Donald A. Wood (“Wood”) appeals the order of the Dearborn Superior Court
revoking his probation and ordering him to serve six years of his previously-suspended
sentence.
We affirm.
Facts and Procedural History
On May 2, 2010, Wood pleaded guilty to Class D felony operating a vehicle while
intoxicated (“OWI”) and admitted to being an habitual substance offender. The trial
court then sentenced Wood to an aggregate sentence of eleven years, with ten years
suspended. On September 10, 2012, Wood was put on probation as part of his suspended
sentence. On April 24, 2013, Wood submitted a urine sample that tested positive for
cocaine, methamphetamine, and alcohol. On May 3, 2013, the State filed a notice of
probation violation.
The trial court held a probation revocation hearing on June 6, 2013. The State
presented evidence that Wood’s underlying conviction was his tenth conviction for OWI.
Further, at the time of the revocation hearing, Wood had two warrants for his arrest in
Ohio. Wood admitted the violation and testified that he had been a substance abuser
since the age of twelve. He claimed to have been clean and sober for forty-five months,
until his father died. Wood stated that the stress from his father’s death led to his relapse.
Wood requested lenience, claiming that he helped take care of his elderly mother. The
trial court took into consideration Wood’s admission of the violation, but noted his
extensive criminal history, his history of probation violations, and the fact that the current
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violation was for the use of cocaine, methamphetamine, and alcohol. The trial court then
revoked Wood’s probation and ordered him to serve six of the ten years of his
previously-suspended sentence. Wood now appeals.
Discussion and Decision
It is well settled that probation is a matter of grace and a conditional liberty that is
a favor, not a right. Cooper v. State, 917 N.E.2d 667, 671 (Ind. 2009). The trial court
determines the conditions of probation and may revoke upon determining that those
conditions were violated. Id. Here, Wood does not claim that the trial court erred in
revoking his probation. Instead, he claims that the trial court should have ordered him to
serve only two years, not six years, of his previously-suspended sentence.
The sentencing of a defendant following a probation violation is governed by
Indiana Code section 35-38-2-3(h), which provides that upon finding a violation of
probation, a trial court may:
(1) continue the person on probation, with or without modifying or
enlarging the conditions;
(2) extend the person’s probationary period for not more than one year
beyond the original probationary period;
(3) order execution of the sentence that was suspended at the time of
initial sentencing.
The fact that the trial court has options under section 35-38-2-3(h) implies it has
discretion in deciding which option is appropriate under the circumstances of each case.
Johnson v. State, 692 N.E.2d 485, 488 (Ind. Ct. App. 1998). Indeed, our supreme court
has held that “[o]nce a trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to proceed.”
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Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Accordingly, we review a trial court’s
sentencing decision following a probation revocation for an abuse of discretion. Sanders
v. State, 825 N.E.2d 952, 957 (Ind. Ct. App. 2005). An abuse of discretion will be found
only where the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Prewitt, 878 N.E.2d at 188.
Wood claims that the trial court abused its discretion in ordering him to serve six
years executed because he admitted his violation and explained how it happened. He also
claims that his sentence would be unduly harsh on his elderly mother and that a sentence
of two years would adequately punish him for his violation. However, under the facts
and circumstances presented here, we cannot say that the trial court’s decision was an
abuse of discretion.
First, although Wood admitted his violation, he had already tested positive for
drug use, and any denial would have been of little avail. And although we sympathize
with Wood for the loss of his father, this does not excuse his decision to again return to
drug use after a period of sobriety. This is especially so when Wood had participated in
substance abuse treatment and knew of the availability of these services. And the only
evidence regarding the impact on Wood’s mother was Wood’s own testimony, which the
trial court was free to discredit. In fact, Wood himself testified that his sister also assists
with the care of their mother. Moreover, Wood fails to explain how a sentence of two
years would impose any less hardship on his family. See Patterson v. State, 846 N.E.2d
723, 730 (Ind. Ct. App. 2006) (finding no abuse of trial court discretion for failing to
consider undue hardship on defendant’s family as a mitigator when defendant failed to
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explain how greater sentence imposed any additional hardship than lesser sentence would
impose).
Wood is a recidivist drunk driver and substance abuser with ten prior convictions
for OWI. Woods also had prior drug related convictions and had violated the terms of his
probation in the past. Nor was Wood’s current violation a minor one; he tested positive
for cocaine, methamphetamine, and alcohol. Under these facts and circumstances, we
cannot say that the trial court abused its discretion in ordering Wood to serve six of the
ten years of his previously-suspended sentence.
Affirmed.
BRADFORD, J., and PYLE, J., concur.
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