James T. Reese v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Jan 29 2015, 9:36 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James T. Reese, January 29, 2015
Appellant-Defendant, Court of Appeals Cause No.
73A01-1408-CR-341
v. Appeal from the Shelby Superior
Court
The Honorable Jack A. Tandy,
State of Indiana, Judge
Appellee-Plaintiff Cause No. 73D01-1208-FC-43
Crone, Judge.
Case Summary
[1] James T. Reese appeals the trial court’s order revoking his probation and
remanding him to the Indiana Department of Correction (“DOC”) for thirty of
the thirty-six months of his suspended sentence stemming from his conviction
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for class C felony intimidation. Finding that the trial court acted within its
discretion, we affirm.
Facts and Procedural History
[2] In November 2012, Reese pled guilty to class C felony intimidation. The trial
court sentenced him to five years, with two years executed and the remainder
suspended to probation.
[3] In August 2013, the State filed a petition to revoke Reese’s probation, citing
marijuana use, a failure to answer reasonable questions from his probation
officer, and a failure to attend scheduled meetings with his probation officer.
Reese admitted to the violations during a November 2013 revocation hearing.
The trial court continued Reese’s probation, subject to the additional conditions
that he complete sixty hours of community service, obtain an ADA evaluation,1
and comply with all recommendations.
[4] In February 2014, the State filed a second probation revocation petition against
Reese, alleging that he tested positive for methamphetamine (“meth”), was not
forthright about his drug use, and failed to begin his community service hours.
1
We note that the record does not specifically define the term “ADA.”
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Two months later, the State filed an addendum alleging that Reese had again
tested positive for meth. At his July 2014 probation revocation hearing, Reese
admitted to the violations contained in both the petition and the addendum.
The trial court issued an order revoking his probation and remanding him to the
DOC for thirty of the thirty-six months of his suspended sentence.
[5] Reese now appeals. Additional facts will be presented as necessary.
Discussion and Decision
[6] Reese maintains that the trial court abused its discretion in ordering him to
execute thirty months of his thirty-six-month suspended sentence after his
second round of probation violations. Probation is a matter of grace left to the
trial court’s sound discretion, not a right to which a criminal defendant is
entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court
determines the conditions of probation and may revoke probation if the
probationer violates those conditions. Id. Proof of a single violation is
sufficient to permit a trial court to revoke probation. Beeler v. State, 959 N.E.2d
828, 830 (Ind. Ct. App. 2011), trans. denied.
[7] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Then, if a violation is found, the court determines whether the
violation warrants revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
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[8] A trial court’s sentencing decisions for probation violations are reviewable for
an abuse of discretion. Prewitt, 878 N.E.2d at 188. An abuse of discretion
occurs where the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Id.
[9] Here, Reese admitted to all the violations alleged in the State’s second
revocation petition and the addendum to it. These include using and
consuming meth, providing untruthful information to his probation officer, and
failing to perform or even begin his sixty hours of community service. The only
allegation for which he offered any explanation was his community service,
claiming that he lacked the funds necessary to pay the $100 fee.
[10] Because Reese admitted to the violations, the trial court was left to determine
which of the following actions to take: (1) continue Reese’s probation, with or
without modifying or enlarging the conditions; (2) extend his probationary
period for not more than one year beyond the original probationary period;
and/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).
[11] As noted, this is Reese’s second probation revocation proceeding. During the
hearing on the State’s first petition, Reese admitted to the violations, and the
trial court opted to continue his probation with enlarged conditions, including
sixty hours of community service and an ADA evaluation. In the two and a
half months that followed, Reese tested positive for meth and failed to perform
or even begin performance of his court-ordered community service. He was
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untruthful with his probation officer concerning his drug use and continued to
use meth, even though the second petition to revoke his probation was already
pending. Again, he admitted to the allegations, and this time, the trial court
imposed a different option within the statutory framework – execution of most
but not all of his suspended term. Ind. Code § 35-38-2-3(h)(3).
[12] In sum, the trial court granted Reese leniency when it continued his probation
after his first round of violations. Instead of responding positively to the grace
afforded him, Reese continued to engage in prohibited conduct (taking drugs)
and neglected to engage in positive conduct (serving his community). He has
an extensive adult and juvenile criminal record and has repeatedly
demonstrated that he is unwilling to comply with the terms of his probation and
with the law in general. Simply put, these patterns of conduct do not portend
success for him outside the confines of the DOC. Based on the foregoing, we
conclude that the trial court acted within its discretion in revoking Reese’s
probation and remanding him to the DOC for thirty months of his remaining
term. Accordingly, we affirm.
[13] Affirmed.
Friedlander, J., and Kirsch, J., concur.
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