Joseph Chadwick Cole v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Jul 23 2014, 7:06 am
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:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH CHADWICK COLE, )
)
Appellant-Defendant, )
)
vs. ) No. 69A05-1402-CR-92
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl Taul, Judge
Cause No. 69C01-0910-FB-22
July 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Contending the trial court abused its discretion, Joseph C. Cole appeals its order
revoking his probation. We affirm.
On February 7, 2011, Cole pleaded guilty to sexual misconduct with a minor as a
Class B felony and was sentenced to six years, with three of those years suspended to
probation. As a condition of his probation, Cole was not to ingest alcohol or illegal
substances and was ordered not to commit additional crimes.
During the term of his probation, Cole was arrested for operating a vehicle while
intoxicated. The arresting officer administered a breath test at the scene which showed
Coles’ blood alcohol content was 0.22%. Cole pleaded guilty and was convicted of
operating while intoxicated.
The State filed a petition to revoke his probation contending that he had violated his
probation by ingesting alcohol, committing a new offense, and failing to pay probation
fees. Cole admitted the allegations, and the trial court revoked Cole’s probation and
ordered him to serve the remainder of his sentence.
“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 may revoke probation if the
conditions are violated.” Id. Upon the revocation of probation, the trial court may: (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; and (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(g). A trial court’s
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sentencing decisions for probation violations are reviewable using the abuse of discretion
standard. Prewitt, 878 N.E.2d at 188. “An abuse of discretion occurs where the decision
is clearly against the logic and effect of the facts and circumstances.” Id.
Cole violated three conditions of his probation. He ingested alcohol and was
convicted of a new crime. When arrested, the portable breath test showed his blood alcohol
content was nearly three times the legal limit. In addition, Cole failed to pay his probation
fees, notwithstanding his employment and ability to pay. Finally, Cole had a history of
prior probation violations.
Cole has failed to show that the trial court abused its discretion.
Affirmed.
BAKER, J., and ROBB, J., concur.
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