Thomas H. Fuller, III v. State of Indiana

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 May 22 2014, 10:36 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS H. FULLER, III, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1307-CR-336
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael Rader, Judge
Cause Nos. 84D05-1111-FD-3633
84D05-1203-FD-973
May 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHEPARD, Senior Judge
Thomas H. Fuller III pled guilty to three class D felonies. The trial court allowed
him to serve a portion of his sentence on work release. The State later alleged that Fuller
violated the terms of work release. After a hearing, the court ordered him to serve his
entire previously-suspended sentence. Fuller challenges the extent of the time revoked.
We affirm.
FACTS AND PROCEDURAL HISTORY
Fuller had pled guilty to class D felony receiving stolen auto parts in case 3633
and to separately filed charges of class D battery resulting in bodily injury and class D
operating a vehicle while intoxicated in case 973. On December 21, 2012, the court
sentenced Fuller to two years in case 3633, followed by two-year concurrent sentences in
973. It suspended the sentences except for 180 days of each sentence to be served
consecutively on work release under the Vigo County Community Corrections Program.
On March 26, 2013, the State petitioned to revoke Fuller’s probation in both cause
numbers. After an evidentiary hearing, the court determined Fuller had violated the
terms of his probation by: (1) consuming alcohol; (2) consuming methamphetamine; (3)
failing to timely find employment; and (4) failing to pay work release fees. The Court
sentenced Fuller as follows:
I guess the problem I have is that you’ve got two (2) prior meth convictions
and a resisting law enforcement conviction. Those are priors, we are here
on two new cases where you’ve plead [sic] guilty to Battery Resulting in
Bodily Injury, that was on a law enforcement officer. Operating a vehicle
while intoxicated, a felony. And receiving stolen auto parts, a felony. I
think, it’s to [sic] many chances, and that’s part of what’s wrong with the
system, there is no accountability.
*****
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No, I understand, actions have consequences though, and you’ve been
given multiple opportunities. You’re revoked for the balance of your
sentence, four (4) years with the Indiana Department of Correction.
Tr. pp. 35-36. This appeal followed.
ISSUE
Fuller claims the court abused its discretion in ordering him to serve his entire
previously-suspended sentence.
DISCUSSION AND DECISION
If a trial court determines that a person has violated a term of probation before
termination of the period, the court may 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) (2012). A trial
court’s sentencing decision on a probation violation is reviewed under the abuse of
discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of
discretion occurs where the decision is clearly against the logic and effects of the facts
and circumstances. Id.Here, Fuller does not contest the court’s determination that he committed four
probation violations. Instead, he challenges his sentence, saying he stayed off drugs for
several years before using again in the instant cases. Fuller further notes that he freely
admitted during the revocation hearing that he had used illegal drugs and points out that
he has voluntarily participated in drug counseling programs. He thus says that the court
should not have ordered that the full four-year sentence be executed.
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The trial court correctly noted that Fuller has been given numerous chances to
reform and has chosen not to comply. He admitted to using illegal drugs from a young
age. He further conceded that he has participated in numerous drug treatment programs
in the past but that he relapsed after the programs ended. In addition, Fuller said at the
revocation hearing that he has prior convictions for operating while intoxicated, meth-
related offenses, and resisting law enforcement.
It is also notable that Fuller tested positive for alcohol and methamphetamine just
one month into his one-year term of work release. The Community Corrections program
took away some credit time due to those violations but allowed him to remain in the
program.
Unfortunately, despite being given yet another chance, Fuller chose not to comply.
He failed to find a job for seventy-six days after entering the program. He found a job
the day after the State filed a petition to revoke. Fuller also failed to pay work release
program fees and accrued a debt of $449.00.
All in all, the court’s decision that Fuller had been extended enough chances is not
against the logic and effect of the facts and circumstances before the court. See Butler v.
State, 951 N.E.2d 255, 262-63 (Ind. Ct. App. 2011) (no abuse of discretion in imposing
the balance of a suspended sentence where probationer continued to abuse alcohol and
illegal drugs despite previously participating in treatment).
CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment.
Affirmed.
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VAIDIK, C.J., and MAY, J., concur.
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