Derek Mason v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 11 2015, 9:43 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Benjamin Loheide Gregory F. Zoeller
Law Office of Benjamin Loheide Attorney General of Indiana
Columbus, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Mason, December 11, 2015
Appellant-Defendant, Court of Appeals Case No.
03A01-1503-CR-115
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff Judge
Trial Court Cause No.
03D01-1302-FD-951
Crone, Judge.
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Case Summary
[1] Derek Mason appeals the trial court’s revocation of his probation. The sole
issue presented for our review is whether the trial court abused its discretion in
revoking Mason’s probation and imposing his entire previously suspended
sentence. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] On March 22, 2010, Mason pled guilty to two counts of class D felony theft and
two counts of class D felony receiving stolen property. The trial court
sentenced Mason to one and one-half years suspended on each count, to be
served consecutively for an aggregate suspended sentence of six years. The
court placed Mason on probation for a period of four years.
[3] In August 2010, the State filed a petition to revoke probation. On February 16,
2011, Mason admitted to violating his probation by committing two class A
misdemeanors. The trial court ordered that Mason be returned to probation for
a four-year term but that he serve his probation in community corrections. In
April 2011, the State filed a second petition to revoke probation. On February
22, 2012, Mason admitted to violating his probation by possessing alcohol
during a home visit. The trial court gave Mason credit for time served and
returned him to probation pursuant to the terms of its 2011 order.
[4] On July 15, 2014, the State filed a third petition to revoke probation. During
the probation revocation hearing, Mason admitted to violating his probation by
failing to pay fees and costs, failing to report to four probation appointments,
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and using cannabinoids on March 26, 2013. The trial court revoked Mason’s
probation and imposed the balance of his previously suspended six-year
sentence minus credit time. This appeal ensued.
Discussion and Decision
[5] “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). It is within the trial court’s discretion to determine the conditions of
probation and to revoke probation if those conditions are violated. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial court’s decision to
revoke probation for an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326
(Ind. Ct. App. 2012). An abuse of discretion occurs when the court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id. We neither reweigh evidence nor reassess witness credibility, and we
consider only the evidence favorable to the trial court’s judgment. Id. If there is
substantial evidence to support the trial court’s decision that a probationer has
violated any terms of probation, we will affirm the decision to revoke
probation. Id.[6] Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640
(Ind. 2008). First, the trial court must make a factual determination that a
violation of a condition of probation actually occurred. Id. If a violation is
proven, then the trial court must determine if the violation warrants revocation
of the probation. Id. Violation of a single condition of probation is sufficient to
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revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011),
trans. denied. Upon determining that a probationer has violated a condition of
probation, the trial court may either continue him on probation, with or
without enlarging the conditions, extend his probation for not more than one
year beyond the original probationary period, or order execution of all or part
of the sentence that was suspended at the time of initial sentencing. Ind. Code §
35-38-2-3(h)(3). 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.
[7] Mason first asserts that the trial court abused its discretion in considering his
failure to pay fees and costs as a basis for revoking his probation without: (1)
requiring the State to provide a factual basis that he recklessly, knowingly, or
intentionally failed to pay pursuant to Indiana Code Section 35-38-2-3(g); and
(2) inquiring into his ability to pay. See Smith v. State, 963 N.E.2d 1110, 1112
(Ind. 2012) (In probation revocation cases involving payment of a financial
obligation, the State has the burden to prove the fact of the violation, i.e., less
than full payment, and it must also prove the probationer's state of mind.).
[8] During the revocation hearing, Mason admitted to violating the terms of his
probation by failing to pay fees and costs, failing to report to four probation
appointments, and using cannabinoids on at least one occasion during the
probationary period. Thus, the alleged lack of factual basis as to Mason’s state
of mind regarding his failure to pay fees and costs or his ability to pay them is
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not dispositive, as he has two additional admitted violations which standing
alone could support the revocation of probation. 1 See Beeler, 959 N.E.2d at 830.
[9] Mason maintains that the imposition of his entire suspended sentence was
unwarranted especially if, aside from his failure to pay fees and costs, his
probation was revoked simply for missing some appointments and using
cannabinoids. The record indicates that this was Mason’s third probation
violation in this cause. Thus, the trial court had ample basis for determining
that imposition of the entire suspended sentence was proper since its prior
attempts at lesser sanctions had proven unsuccessful. The object of
probationary terms and conditions is to ensure that probation serves as a period
of genuine rehabilitation. If a probationer repeatedly violates probation terms,
as is the case with Mason, the very purpose of probation is defeated. Under the
circumstances, we cannot say that the trial court abused its discretion in
revoking Mason’s probation and ordering him to serve his entire suspended
sentence.
[10] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
1
We note that although it is the State's burden to prove both the violation and the requisite state of mind in
order to obtain a probation revocation based upon nonpayment of a financial obligation, with respect to the
ability to pay, it is the defendant probationer's burden “to show facts related to an inability to pay and
indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should
not be ordered.” Smith, 963 N.E.2d at 1113 (citation omitted).
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