Charles Ahnert v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2020, 9:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles M. Ahnert, Jr., November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1329
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-2001-F6-245
Najam, Judge.
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Statement of the Case
[1] Charles M. Ahnert, Jr. appeals his sentence following the trial court’s
revocation of his placement on probation. Ahnert presents a single issue for our
review, namely, whether the trial court abused its discretion when it ordered
him to serve 180 days of his previously suspended sentence in the Vigo County
Jail.
[2] We affirm.
Facts and Procedural History
[3] In April 2020, Ahnert agreed to plead guilty to theft, as a Level 6 felony. In the
same plea agreement, Ahnert admitted that his actions amounted to a violation
of his probation following a prior conviction. On April 6, the trial court
accepted Ahnert’s plea and sentenced him to two and one-half years, all
suspended to probation. As a condition of his probation, the court ordered
Ahnert to submit to a substance abuse evaluation.
[4] On April 16, the State filed its first notice of probation violation. In that notice,
the State alleged that Ahnert had violated the terms of his probation when he
failed to report to adult probation and when he failed to complete a substance
abuse evaluation. Following an evidentiary hearing, the court found that
Ahnert had violated the terms of his probation. Accordingly, on June 8, the
court revoked a portion of Ahnert’s previously suspended sentence and ordered
him to serve ninety days in the Vigo County Jail. However, the court agreed to
modify Ahnert’s sentence if he were to be accepted into a sober living facility.
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The same day, Ahnert was accepted into a facility, and the court modified his
sentence to time served and returned him to probation on the condition that he
reside at the sober living facility. Less than one week later, on June 14, Ahnert
left the facility and did not return. As a result, Ahnert was unsuccessfully
discharged from the facility.
[5] On June 15, the State filed its second notice of probation violation. In that
notice, the State alleged that Ahnert had violated the terms of his placement
when he failed to report to a scheduled telephonic meeting with his probation
officer on June 12 and when he was unsuccessfully discharged from the sober
living facility for absconding. Following an evidentiary hearing, the court
found that Ahnert had violated the terms of his placement, revoked his
probation, and ordered him to serve 180 days in the Vigo County Jail. This
appeal ensued.
Discussion and Decision
[6] Ahnert appeals the court’s order that he serve 180 days of his previously
suspended sentence. Probation is a matter of grace left to trial court discretion.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a
defendant has violated a condition of his probation, the trial court may “[o]rder
execution of all or part of the sentence that was suspended at the time of initial
sentencing.” Ind. Code § 35-38-2-3(h)(3) (2020). We review the trial court’s
sentencing decision following the revocation of probation for an abuse of
discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of
discretion occurs “only where the trial court’s decision is clearly against the
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logic and effect of the facts and circumstances” before the court. Robinson v.
State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the
evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-
40 (Ind. 2003). Rather, we consider only the evidence most favorable to the
trial court’s judgment to determine if there was substantial evidence of
probative value to support the court’s ruling. Id.
[7] On appeal, Ahnert does not dispute that he violated the terms of his probation
when he failed to attend a telephonic meeting with his probation officer and
when he left the sober living facility. But Ahnert contends that the court abused
its discretion when it ordered him to serve 180 days of his previously suspended
sentence because he had “explained” to the trial court that he only left the sober
living facility in order to visit his newborn son who was having emergency
surgery and because he was “unaware” that he had a scheduled meeting with
his probation officer. Appellant’s Br. at 8. In essence, Ahnert contends that the
court should have placed him back on probation because his violations were
“minor in nature” and because his testimony at the hearing was “mitigating
evidence.” Id. at 8, 9.
[8] However, it is the duty of the factfinder, not of this Court, to determine whether
to believe a witness’ testimony, even if uncontradicted. See Perry v. State, 78
N.E.3d 1, 8 (Ind. Ct. App. 2017). And, here, the court expressly rejected
Ahnert’s testimony. Indeed, at the conclusion of the hearing, the trial court
found that Ahnert’s “story ma[de] absolutely no sense.” Tr. at 15. Ahnert’s
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request for this Court to credit his testimony when the trial court did not
amounts to a request that we reweigh the evidence, which we cannot do.
[9] The trial court’s judgment is supported by substantial evidence and was within
the court’s sound discretion. Following Ahnert’s guilty plea, the court
sentenced him to two and one-half years, all suspended to probation, and
ordered him to submit to a substance abuse evaluation. But, just ten days later,
the State filed its first notice of probation violation after Ahnert had failed to
report to probation and after he had failed to complete the evaluation. As a
result of those violations, the court continued Ahnert on probation but with the
added condition that he reside at a sober living facility.
[10] However, within one week of his acceptance into the facility, he missed a
scheduled meeting with his probation officer and absconded from the facility.
Further, Ahnert’s conviction for theft in this cause constituted a violation of his
probation for a prior conviction and resulted in the court terminating his
placement on probation in that cause. In other words, despite the court’s prior
leniency, Ahnert has continued to violate the terms of his placement on
probation. Accordingly, the court’s order that Ahnert serve 180 days of his
previously suspended sentence is supported by the record and is well within the
trial court’s discretion. We therefore affirm the court’s judgment.
[11] Affirmed.
Riley, J., and Crone, J., concur.
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