Erik Peetz v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 27 2017, 10:37 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erik Peetz, July 27, 2017
Appellant-Defendant, Court of Appeals Case No.
03A01-1701-CR-237
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1601-F6-110
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 1 of 5
Case Summary and Issue
[1] Erik Peetz appeals the trial court’s finding he had violated the terms of his
probation and order that he serve his suspended sentence in the Indiana
Department of Correction (“DOC”), raising two issues for our review, which
we consolidate and restate as whether the trial court abused its discretion in
revoking his probation. Concluding the trial court did not abuse its discretion,
we affirm.
Facts and Procedural History
[2] In 2015, Peetz was convicted of theft and conversion and sentenced to one year
in the DOC, fully suspended to probation. In early 2016 and while Peetz was
still serving probation, the State charged Peetz under this cause with several
new offenses, including possession of methamphetamine and possession of a
syringe as Level 6 felonies. On September 27, 2016, Peetz was convicted of
possession of a syringe as a Level 6 felony and the trial court sentenced him to
two years in the DOC, fully suspended to probation.
[3] On October 13, 2016, the State filed a notice of a probation violation in this
cause, alleging Peetz failed to attend probation orientation on two occasions,
travelled out of state without permission, and failed to pay probation fees. The
trial court then issued a warrant for Peetz’s arrest. Peetz had knowledge of the
warrant but did not turn himself in. At some point, law enforcement located
Peetz, who fled on foot and hid behind a dumpster. Peetz was arrested.
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[4] At a hearing on December 15, 2016, Peetz admitted to violating the conditions
of his probation as alleged in the notice of probation violation. Relevant below,
Peetz also addressed how he previously violated the probation he was serving
from his theft and conversion convictions by using methamphetamine in 2015.1
Following the hearing, the trial court issued an order revoking Peetz’s probation
and ordering him to serve the balance of his sentence in the DOC, explaining,
“[Peetz] admits that he is in violation of his probation by using
Methamphetamine on or about the 14th day of May, 2015.” Appellant’s
Appendix, Volume 2 at 9. On January 4, 2016, the trial court issued an abstract
of judgment explaining Peetz’s probation was revoked due to “Technical
Violations: Failure to Report.” Id. at 7. This appeal ensued.
Discussion and Decision
I. Standard of Review
[5] Probation is a matter of grace left to trial court discretion and an appeal from
the revocation of probation is reviewed for an abuse of discretion. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances or if the trial court misinterprets the law. Id. “Probation
revocation is a two-step process. First, the trial court must make a factual
1
It is not clear from the record whether this conviction resulted in the revocation of Peetz’s probation under
the previous cause.
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determination that a violation of a condition of probation actually
occurred. Second, if a violation is found, then the trial court must determine
the appropriate sanctions for the violation.” Id. (citation omitted). As to the
first step, the State must prove the defendant violated a condition of probation
by a preponderance of the evidence. Id. at 617.
II. Probation Violation
[6] Peetz argues the trial court erred in finding he violated probation on the basis he
admitted to using methamphetamine in 2015 in a separate cause and therefore
there is insufficient evidence to support a finding that he violated probation in
this cause. We disagree.
[7] At the outset, it appears the trial court was confused in noting Peetz’s
methamphetamine use in 2015 supported the revocation of his probation in this
cause because: 1) Peetz was not ordered to begin serving probation in this cause
until September 2016, and 2) the abstract of judgment stated Peetz’s failure to
report was the basis for the revocation. In any event, the record demonstrates
Peetz admitted to violating multiple conditions of his probation, including
failing to report to orientation on two occasions and failing to seek permission
before travelling out of state. Thus, although the trial court’s order erroneously
cites to Peetz’s 2015 methamphetamine use, there is sufficient evidence in the
record to support the trial court’s finding that Peetz violated probation on other
bases.
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III. Sanction
[8] Peetz also argues the trial court abused its discretion in ordering him to serve
the balance of his sentence in the DOC. Specifically, he contends the trial court
failed to take into consideration certain mitigating circumstances. However,
“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) (citation omitted), trans. denied. In
addition, Peetz violated at least three separate conditions of probation within
just days of being placed on probation, failed to turn himself in to law
enforcement despite knowing a warrant was out for his arrest, and attempted to
flee from law enforcement. The trial court did not abuse its discretion in
ordering Peetz to serve the balance of his sentence in the DOC.
Conclusion
[9] We conclude the trial court did not abuse its discretion in revoking Peetz’s
probation. Accordingly, we affirm.
[10] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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