Shane J. Thomas 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 Apr 23 2019, 10:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Jacob Warrum Curtis T. Hill, Jr.
Mount Vernon, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shane J. Thomas, April 23, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1986
v. Appeal from the Posey Superior
Court
State of Indiana, The Honorable S. Brent Almon,
Appellee-Plaintiff. Judge
Trial Court Cause No.
65D01-1712-F6-721
Mathias, Judge.
[1] Shane J. Thomas (“Thomas”) appeals the order of the Posey Superior Court
revoking his probation and ordering him to serve the balance of his previously
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 1 of 6
suspended sentence in the Department of Correction. Thomas argues that the
trial court abused its discretion in imposing the balance of his sentence because,
he claims, he violated the terms of his probation only due to his fear of being
unable to pay his probation fees.
[2] We affirm.
Facts and Procedural History
[3] On December 19, 2017, the State charged Thomas with Level 6 felony
operating a vehicle while intoxicated endangering a person; Level 6 felony
operating a vehicle while intoxicated with a prior conviction; Class A
misdemeanor operating a vehicle while intoxicated endangering a person; Class
C misdemeanor operating a vehicle while intoxicated; and driving while
suspended, an infraction.
[4] On January 30, 2018, Thomas entered into an agreement with the State
whereby he pleaded guilty to Level 6 felony driving while intoxicated with a
prior conviction and driving while suspended. In exchange, the State dismissed
the remaining charges. The trial court sentenced Thomas to two years, with six
months executed, and eighteen months suspended to probation.1
1
At the time of sentencing, Thomas had served eighty-eight days in pre-trial detention and earned an
additional eighty-eight days of good-time credit. Thus, he had approximately only one week remaining of his
executed sentence to serve.
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[5] Less than two months later, on March 9, 2018, the State filed a petition to
revoke Thomas’s probation, alleging that he had violated the terms of his
probation by failing to attend scheduled visits with his probation officer, failing
to return the telephone calls of his probation officer, missing three scheduled
drug screenings, and failing to call the probation department daily as instructed.
At a revocation hearing held on June 5, 2018, Thomas admitted to violating the
terms of his probation as alleged in the petition. Tr. pp. 4–7. The trial court then
held a dispositional hearing on July 16, 2018, at which it ordered Thomas to
serve the balance of his previously suspended eighteen-month sentence.
Thomas now appeals.
Discussion and Decision
[6] To revoke probation, the trial court must make two determinations under
Indiana Code section 35-38-2-3. First, the court must find that a violation has
occurred by a preponderance of the evidence. Ind. Code § 35-38-2-3(f). Here,
Thomas admitted to violating the terms of his probation, and he therefore
makes no argument on appeal that the trial court erred by finding that he
violated the terms of his probation.
[7] Second, if this threshold is met, the trial court has three options: (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, or (3) 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).
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[8] On appeal, we review a trial court’s sentencing decision in a probation
revocation proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d
1146, 1148 (Ind. Ct. App. 2005). A trial court abuses its discretion only if its
decision is clearly against the logic and effect of the facts and circumstances
before it. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).
[9] In the present case, Thomas argues that the trial court abused its discretion by
ordering him to serve the balance of his previously suspended sentence. As we
have recognized in our prior cases:
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
given to trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation. . . .
Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013) (citing Prewitt v.
State, 878 N.E.2d 184, 187 (Ind. 2007)) (internal quotation marks omitted),
trans. denied.
[10] Thomas admitted that he failed to show up for scheduled appointments, failed
to return calls from his probation officer, and missed three scheduled drug
screens. These are not minor or technical violations, and they all occurred only
a few weeks after Thomas was released on probation. In addition, the pre-
sentence investigation report showed that Thomas had been charged with
possession of marijuana in another county. Furthermore, Thomas had been
placed on probation in the past but had never successfully completed probation.
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Under these facts and circumstances, the trial court was well within its
discretion to order Thomas to serve the balance of his previously suspended
sentence. See Sanders v. State, 825 N.E.2d 952, 958 (Ind. Ct. App. 2005) (holding
that trial court did not abuse its discretion by ordering defendant to serve the
entirety of her previously suspended sentence where she admitted to probation
violations), trans. denied.
[11] Thomas’s main argument on appeal is that the trial court should have shown
him more lenience because he claimed that he failed to show up to his
appointments because he was unable to pay his probation fees. However, the
trial court was under no obligation to credit Thomas’s self-serving testimony in
this regard. Moreover, the trial court directly addressed Thomas’s excuse,
saying:
Mr. Thomas, one of the deals here is instead of, well, I may not
be able to pay, I give up, you go in and proactively talk to your
probation officer about that and resolve the issue. It’s not an
excuse just to wander off and not participate in probation or miss
meetings, and nobody gets revoked for inability to pay.
Tr. p. 22. We agree wholeheartedly. If Thomas was truly concerned about his
ability to pay, he should have spoken with his probation officer. Missing
appointments and, more importantly, drug screens, was simply not an option.
[12] For all of these reasons, we are unable to say that the trial court abused its
considerable discretion by ordering Thomas to execute the balance of his
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previously suspended sentence. Accordingly, we affirm the judgment of the trial
court.
[13] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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