James M. Tabor v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jul 19 2017, 6:43 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James M. Tabor, July 19, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1703-CR-525
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D01-1403-FC-789
Bailey, Judge.
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Case Summary
[1] James M. Tabor (“Tabor”) pled guilty to Operating a Vehicle after a Lifetime
Forfeiture, as a Class C felony,1 and Possession of Marijuana, as a Class A
misdemeanor.2 The trial court sentenced him to six years imprisonment, with
two years to be served in community corrections and four years suspended to
probation. Tabor subsequently violated the conditions of his probation. Tabor
admitted the violations, and the trial court ordered the remainder of his prison
term be executed. Tabor now appeals, raising for our review the sole issue of
whether the trial court abused its discretion when it ordered the remainder of
his prison term be served as executed time.
[2] We affirm.
Facts and Procedural History
[3] On July 8, 2014, Tabor entered into a plea agreement with the State, confessing
guilt as to Operating a Vehicle after a Lifetime Forfeiture and Possession of
Marijuana. The trial court entered judgment against Tabor on July 23, 2014,
and sentenced him to an aggregate term of incarceration of six years: six years
of incarceration as to Operating a Vehicle after a Lifetime Forfeiture, and one
1
Ind. Code § 9-30-10-17. Tabor’s offenses were committed prior to the effective date of a comprehensive
revision of Indiana’s criminal statutes. We refer through the statutes applicable at the time of Tabor’s
offense.
2
I.C. § 35-48-4-11(1).
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year of imprisonment as to Possession of Marijuana, with the terms to run
concurrent with one another. The trial court ordered two years of the sentence
executed on in-home detention with community corrections, and suspended the
remaining years of Tabor’s sentence to probation.
[4] On January 10, 2017, the State filed a petition to revoke Tabor’s direct
placement in home detention and/or to revoke his probation. On February 7,
2017, a probation revocation hearing was conducted. Tabor admitted to several
violations of the terms of his probation, and the trial court heard argument as to
whether to revoke Tabor’s probation. At the hearing’s conclusion, the court
revoked the entirety of Tabor’s suspended sentence, and ordered him to serve
the remainder of his six-year sentence as executed time in the Department of
Correction.
[5] This appeal ensued.
Discussion and Decision
[6] Tabor challenges the trial court’s order requiring him to serve the remainder of
his sentence as executed time in the Department of Correction.
[7] Probation revocation is a two-step process. First, the court must determine
whether the terms of probation have been violated; second, the court must
determine appropriate sanctions for the violation. Heaton v. State, 984 N.E.2d
614, 616 (Ind. 2013). The Indiana Supreme Court has set forth the standard
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under which we review decisions revoking probation and imposing sanctions
for the violation of probation terms:
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 discretion of the
trial court to determine probation conditions and to revoke
probation if the conditions are violated. Id. In appeals from trial
court probation violation determinations and sanctions, we
review for abuse of discretion. Id. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the
facts and circumstances, id., or when the trial court misinterprets
the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
(“An abuse of discretion may also be found when the trial court
misinterprets the law or disregards factors listed in the controlling
statute.”)).
Id.
[8] Here, the trial court revoked Tabor’s probation and ordered him to serve the
remainder of his six-year term of imprisonment as executed time. Tabor argues
that this was an abuse of discretion given his prior history of substance abuse
problems and his need for additional, intensive substance abuse treatment.
[9] A review of the record discloses that Tabor had been afforded several
opportunities to obtain substance abuse treatment in the past, but did not
complete any treatment program. He has a series of criminal convictions
involving substance abuse, often in combination with traffic violations. Tabor
and the trial court both acknowledged his need for substance abuse treatment.
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Yet in light of Tabor’s multiple violations of the terms of his probation,
including failure to call in for drug screens, failure to appear for drug screens,
and possession of a device to adulterate a drug screen, we cannot conclude that
the trial court’s decision to remand Tabor to the Department of Correction,
with a recommendation for placement in a therapeutic program, was an abuse
of the trial court’s discretion.
[10] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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