Mark A. Sheese v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), Jun 21 2013, 5:53 am
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 Attorney General of Indiana
Plainfield, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK A. SHEESE, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1301-CR-18
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause Nos. 84D03-1008-FD-2636, 84D03-0908-FC-2393
June 21, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Mark Sheese appeals the revocation of his probation. He presents one issue for our
review: whether the trial court abused its discretion when it ordered him to serve executed
the four years that remained on his sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 15, 2011, Sheese pled guilty to one count of Class D felony domestic
battery1 and one count of Class D felony failure to register as a sex offender.2 Pursuant to the
plea agreement, Sheese was sentenced to six years, with four years and 330 days suspended
to probation. On August 6, 2012, the State petitioned to revoke probation, alleging Sheese
had committed one count of Class D felony domestic battery,3 one count of Class A
misdemeanor resisting law enforcement,4 one count of Class B misdemeanor false
informing,5 and one count of Class B misdemeanor public intoxication.6 The trial court found
Sheese in violation of probation and ordered him incarcerated for the remaining four years of
his sentence.
DISCUSSION AND DECISSION
Probation is a matter of grace to which a defendant has no entitlement, Smith v. State,
963 N.E.2d 1110, 1112 (Ind. 2012), as is the trial court’s consideration and imposition of any
alternatives to incarceration. Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996). A
trial court may revoke probation after the State shows by a preponderance of the evidence
1
Ind. Code § 35-42-2-1.3(a) and 35-42-2-1.3(b)(2).
2
Ind. Code § 11-8-8-17(a)(5).
3
Ind. Code § 35-42-2-1.3.
4
Ind. Code § 35-44.1-3-1.
5
Ind. Code § 35-44.1-2-3.
6
Ind. Code § 7.1-5-1-3.
2
that a condition of probation has been violated during the probationary period, and that
violation warrants revocation. Alford v. State, 965 N.E.2d 133, 134-35 (Ind. Ct. App. 2012).
The State’s burden to prove a violation is satisfied when the probationer admits to the
violation. Id. On such a showing, the trial court may order the execution of the entire
sentence that was suspended at the time of the initial hearing. Ind. Code § 35-38-2-3(h)(3);
Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004). As Sheese admitted he violated the
terms of his probation, the sole issue for our consideration is whether the trial court abused
its discretion when it ordered Sheese to serve the remainder of his suspended sentence
incarcerated.
An abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court. Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007). On review, we look to the evidence most favorable to the State without
reweighing evidence or judging witness credibility. Dokes v. State, 971 N.E.2d 178, 179
(Ind. Ct. App. 2012).
Sheese admitted consuming alcohol in violation of the terms of his probation. There
was evidence Sheese was involved in two physical altercations: in the first, Sheese struck his
roommate in the face with a closed fist and in the stomach with a beer can, and in the second,
he fought with a friend in the middle of a public street. After considering the evidence, the
trial court found Sheese in violation of his probation. It was therefore within the trial court’s
authority to incarcerate Sheese for the remainder of his sentence. See Ind. Code § 35-38-2-
3(h)(3) (“If the court finds that the person has violated a condition at any time before
3
termination of the period, and the petition to revoke is filed within the probationary period,
the court may impose one (1) or more of the following sanctions: . . .(3) Order execution of
all or part of the sentence that was suspended at the time of initial sentencing.”). Therefore,
we find no abuse of discretion in the trial court’s decision and we accordingly affirm.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
4