Pursuant to Ind.Appellate Rule 65(D),

                                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Mar 20 2012, 9:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JASON A. CHILDERS                                  GREGORY F. ZOELLER
Hulse, Lacey, Hardacre, Austin,                    Attorney General of Indiana
 Sims & Childers, P.C.
Anderson, Indiana                                  ANDREW R. FALK
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MITCHELL PRESTON,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 48A04-1108-CR-403
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Rudolph R. Pyle, III, Judge
                              Cause No. 48C01-0101-CF-008
                              Cause No. 48C01-0102-CF-040
                             Cause No. 48C01-0708-FD-394


                                         March 20, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Upon finding that Mitchell Preston (“Preston”) had violated the terms of his

probation, the trial court ordered Preston to serve seven years of his previously suspended

sentences in the Indiana Department of Correction (“DOC”). Preston now appeals the trial

court’s order, arguing that it was an abuse of discretion. Finding no abuse of discretion, we

affirm.

                                   Facts and Procedural History

          On July 9, 2001, Preston pled guilty to one count of Dealing in a Schedule II

Controlled Substance, as a Class B felony,1 and one count of Possession of Marijuana, as a

Class A misdemeanor,2 under cause number 48C01-0101-CF-008 (“CF-008”). That same

day, Preston pled guilty to one count of Dealing in Cocaine, as a Class B felony,3 and one

count of Dealing in Marijuana, as a Class D felony,4 under cause number 48C01-0102-CF-

040 (“CF-040”). On August 15, 2001, the trial court sentenced Preston to twenty years under

each cause number, with fifteen years executed and five suspended.5 The sentences were to

run concurrently with each other.

          On December 17, 2004, Preston petitioned for a modification of his sentence. The

trial court granted Preston’s petition on December 20, 2004, by modifying the executed


1
  Ind. Code § 35-48-4-2(a).
2
  I.C. § 35-48-4-11.
3
  I.C. § 35-48-4-1(a).
4
  I.C. § 35-48-4-10(a).
5
  Specifically, under CF-008, Preston received twenty years for Dealing in a Schedule II Controlled Substance,
with fifteen years executed and five years suspended, and one year for Possession of Marijuana, to run
concurrently. Under CF-040, Preston received twenty years for Dealing in Cocaine, with fifteen years
executed and five years suspended, and one year for Dealing in Marijuana, to run concurrently.
                                                      2
portion of his sentences in both CF-008 and CF-040 to time already served. Preston was

released from the DOC the same day and was placed on probation.

        In early 2006, the State filed a Notice of Probation Violation against Preston for

operating a vehicle while intoxicated. On March 27, 2006, Preston admitted violating the

terms of his probation. On July 5, 2006, the trial court ordered that Preston’s probation be

extended for six months.

        On August 15, 2007, the State charged Preston with several offenses under cause

number 48C01-0708-FD-394 (“FD-394”) and on October 3, 2007, Preston pled guilty to

Possession of a Controlled Substance, as a Class D felony;6 Unlawful Possession of a Legend

Drug, as a Class D felony;7 Operating a Vehicle While Intoxicated, as a Class D felony;8 and

Possession of Marijuana, as a Class D felony.9 Preston was sentenced on October 9, 2007,

and, for each offense, he received three years imprisonment, with eighteen months executed

in the DOC and eighteen months in a community corrections work release program. The trial

court ordered that all his sentences be served concurrently, but stayed all sentences pending

Preston’s successful completion of the drug court program.

        Having pled guilty to the offenses in FD-394, Preston was also in violation of his

probation in causes CF-008 and CF-040. For these violations, the court ordered that he serve

two years imprisonment for each cause number, both executed in the DOC, with the terms




6
  I.C. § 35-48-4-7(a).
7
  I.C. § 16-42-19-13.
8
  I.C. § 9-30-5-2(a); I.C. § 9-30-5-3.
9
  I.C. § 35-48-4-11(1).
                                             3
running concurrently with each other but consecutive to his year sentence in FD-39410.

However, the execution of these two-year terms of imprisonment was also stayed pending

successful completion of the drug court program.

        Preston was admitted to the drug court program on October 22, 2007, but he opted out

on October 9, 2008, because of a new arrest. This arrest constituted a violation of the terms

of his probation, and, as a sanction in causes CF-008 and CF-040, he was ordered to serve

two years in a community corrections work release program for each cause number. The trial

court ordered that Preston serve these two terms concurrently with each other. Consecutive

to this was an additional two years in work release for the probation violation in cause FD-

394.

        On May 6, 2009, Preston petitioned the court for a modification of the terms of his

sentence from work release to probation. The State did not object, and the trial court granted

Preston’s request as to all three cause numbers on May 18, 2009.

        On June 6, 2011, the State filed a notice of probation violation in all three cause

numbers against Preston because he tested positive for cocaine metabolite. The trial court

held a contested hearing on July 11, 2011, and after hearing evidence and argument of

counsel, concluded that Preston had violated the terms of his probation. Preston was ordered

to serve four years in the DOC for his probation violation in CF-008 and four years in the




10
  The Chronological Case Summary for FD-394 contains what we surmise to be a typographical error. It states
that the three year sentence in FD-394 shall be consecutive to CF-040 but concurrent with CF-008. However,
both the Chronological Case Summary for CF-040 and the one for CF-008 state that the sanctions in these two
offenses shall run concurrently with each other and consecutive to FD-394.
                                                    4
DOC for his violation in CF-040, to run concurrently. For violating his probation in cause

FD-394, the trial court ordered that he serve three years in the DOC, to run consecutively to

the sentences in CF-008 and CF-040, for an aggregate term of seven years in the DOC with

adjustments for credit time and time actually served against his previously-suspended

sentences in work release.

       Preston now appeals the trial court’s order for his probation violation.

                                  Discussion and Decision

                                     Standard of Review

       Probation is a matter of grace left to the trial court’s 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 those conditions

are violated. Id. We review a trial court’s order for probation violations for an abuse of

discretion. Id. An abuse of discretion occurs when the decision is clearly against the logic

and effect of the facts and circumstances. Id.

                                           Analysis

       Preston does not dispute that he violated the terms of his probation, but instead argues

that the trial court abused its discretion by ordering that he serve seven years in the DOC

rather than in a work release program, as he requested. He asks that we vacate the trial

court’s order and remand for a new hearing.

       Upon finding that Preston violated the terms of his probation, the trial court could

have ordered any of the following:

                                                5
       (1) Continue Preston on probation, with or without modifying or enlarging the
       conditions.

       (2) Extend Preston’s probationary period for not more than one year beyond
       the original probationary period.

       (3) Order execution of all or part of the sentence that was suspended at the
       time of initial sentencing.

See I.C. § 35-38-2-3(g).

       Here, the trial court revoked Preston’s previously suspended sentences and ordered

that he serve them in the DOC. This was after the trial court had already shown considerable

grace and leeway to Preston. His original sentences in CF-008 and CF-040 were modified

such that he was released from the DOC earlier than originally anticipated and placed on

probation. He then violated the terms of that probation in 2006, but he was not sent back to

the DOC; instead, his probationary period was extended. He violated the terms of his

probation yet again in 2007, but the trial court stayed the sentences for those offenses

pending successful completion of a drug court program. Preston did not successfully

complete that drug court program because of another arrest, but instead of returning him to

the DOC, the trial court sent him to a community corrections work release program. While in

work release, Preston successfully petitioned to be transferred back to probation, where he

again violated the terms of his probation.

       Given the extraordinary grace that the trial court has already afforded Preston and his

repeated unwillingness to comply with probationary terms, we cannot say that the trial court

abused its discretion by ordering that Preston serve seven years in the DOC. The trial court’s


                                              6
order is affirmed.

       Affirmed.

BAKER, J., and DARDEN, J., concur.




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