Nicholas L. Porter v. State of Indiana

FILED
Dec 31 2018, 11:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas L. Porter, December 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1931
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03C01-1507-F6-3534
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018 Page 1 of 4
Case Summary
[1] Nicholas Porter (“Porter”) pled guilty to Theft, as a level 6 felony. He received
a sentence of two and one-half years, with two years suspended to probation.
Following the revocation of his probation, Porter appeals, presenting the sole
issue of whether the trial court abused its discretion in imposing a probation
violation sanction. We affirm.
Facts and Procedural History
[2] On January 19, 2016, Porter pled guilty to one count of Theft. He was ordered
to serve two and one-half years in the Bartholomew County Jail, but two years
were suspended to probation. He was also ordered to pay restitution to the
victim and complete substance abuse treatment.
[3] On March 27, 2018, the State petitioned to revoke Porter’s probation. The
petition, as amended, alleged that Porter had missed probation appointments
and had committed a new criminal offense while on probation. A hearing was
conducted on July 16, 2018. Porter admitted that he had committed a new
criminal offense, unauthorized entry of a motor vehicle. The trial court ordered
that Porter serve the two years of his sentence that was previously suspended.
He now appeals.
Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018 Page 2 of 4
Discussion and Decision
[4] Porter argues that the sanction imposed is unduly harsh. More particularly, he
contends that he should receive credit for his admission, akin to mitigating
weight afforded a guilty plea in sentencing proceedings, and that the trial court
should have issued a statement to that effect.
[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).
The trial court determines the conditions of probation, and if the conditions are
violated, the trial court may impose one of three types of sanctions: (1)
continue the person on probation with or without modification; (2) extend the
probationary period; or (3) order execution of all or part of the sentence that
was suspended at the time of the initial sentencing. See Ind. Code § 35-38-2-
3(h); Prewitt, 878 N.E.2d at 188.
[6] We review a sanction imposed following revocation of probation for an abuse
of discretion. Id. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances before the trial court.
Id. Violation of a single condition of placement is sufficient to revoke
placement. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007).
[7] Porter was afforded the rehabilitative opportunity to participate in substance
abuse treatment as a probationer. Evidence adduced at the probation
revocation hearing indicates that he failed to maintain contact with the
probation department and instead committed one or more new criminal
Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018 Page 3 of 4
offenses.1 He had a history of committing property crimes and had violated
probation in the past. As Porter has displayed an unwillingness to avail himself
of rehabilitative efforts, we find no abuse of the trial court’s discretion in
ordering him to serve two years of his original sentence.
[8] To the extent Porter suggests that the trial court was required to treat his
admission as a guilty plea and accord it mitigating weight in a balancing of
sentencing factors, we disagree. Indiana Code Section 35-38-2-3 sets forth the
appropriate procedure, respective duties of the State and courts, and the rights
of a defendant, in a probation revocation proceeding. This governing statute
imposes no requirement upon the trial court to balance aggravating and
mitigating circumstances and issue a sentencing statement when imposing a
sanction for a probation violation.
Conclusion
[9] Porter has demonstrated no abuse of the trial court’s discretion.
[10] Affirmed.
Bradford, J., and Brown, J., concur.
1
In Johnson County, Indiana, Porter pled guilty to unauthorized entry of a motor vehicle, and he was placed
on probation for that offense. Porter claims to have missed two probation appointments because he was in
jail, but it is unclear whether this incarceration was for the unauthorized entry offense or some other offense.
Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018 Page 4 of 4