MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be                                Aug 31 2018, 5:58 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Laura Sorge Fattouch                                     Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Kraig Matthew Wyatt,                                     August 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-358
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1504-F5-29



Rucker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018                Page 1 of 7
[1]   The trial court revoked Kraig Wyatt’s probation. Wyatt now appeals

      contending the trial court abused its discretion in so doing. Finding no abuse

      we affirm.


                                Facts and Procedural History
[2]   Apparently arising out of a domestic altercation1 the State, on April 17, 2015,

      charged Wyatt in a five-count Information with intimidation as a level 5

      felony;2 battery by means of a deadly weapon as a level 5 felony;3 battery with

      moderate bodily injury as a level 6 felony;4 criminal mischief as a class A

      misdemeanor;5 and possession of a controlled substance as a class A

      misdemeanor.6 Thereafter Wyatt entered an agreement with the State and

      pleaded guilty as charged to battery by means of a deadly weapon and criminal

      mischief. The State dismissed the remaining charges. Pursuant to the

      agreement the trial court sentenced Wyatt to an aggregate term of six years in

      the Indiana Department of Correction with two years executed and four years

      suspended to probation. The terms and conditions of probation included: (i)




      1
       We say “apparently” because the underlying record is not before us. However, the statutory
      elements of the offenses listed in footnotes 2, 3, and 4 suggest harm to a family member.
      2
          Ind. Code § 35-45-2-1 (a)(2) (2014).
      3
          Ind. Code § 35-42-2-1(b)(1)(g)(2) (2014).
      4
          Ind. Code § 35-42-2-1(b)(1)(e)(1).
      5
          Ind. Code § 35-43-1-2(a) (2014).
      6
          Ind. Code § 35-48-4-7(a) (2014).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018    Page 2 of 7
      no use of controlled substances; (ii) payment of court costs and probation fees

      within 60 days of release from incarceration; and (iii) compliance with

      substance abuse evaluation and treatment recommendations.


[3]   Wyatt was released from incarceration October 13, 2016. Because of the non-

      payment of fees Wyatt had violated at least one provision of his probation

      within the first few weeks. In any case several months later the Dearborn

      County Probation Department filed a petition for probation violation. The

      petition alleged that Wyatt had violated the terms of his probation by: (i)

      testing positive for controlled substances on three separate occasions; (ii) failing

      to pay court costs or probation fees; and (iii) missing four scheduled substance

      abuse treatment sessions.


[4]   At a fact-finding hearing conducted December 12, 2017 Wyatt admitted the

      allegations in the petition. Thereafter on January 2, 2018 the trial court

      conducted a dispositional hearing “on the issue of a probation violation

      request.” Tr. Vol. 1 p. 4. After considering the evidence and entertaining

      arguments of counsel, the trial court ordered “three (3) years and one hundred

      eighty (180) days of defendant’s four (4) year suspended sentence be revoked

      and that probation shall be terminated.” Appellant’s App. Vol. 2 p. 19. As a

      consequence, after being awarded credit for time served, Wyatt was sentenced

      to the Department of Correction for a period of three and a half years. This

      appeal followed. Additional facts are set forth below as necessary.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018   Page 3 of 7
                                                Discussion
[5]   Wyatt complains the trial court abused its discretion by revoking his probation.

      He does not appear to contend the trial court abused its discretion in general by

      revoking probation. Rather Wyatt seems to take the position the trial court

      revoked too much of his probation.7 In any event, “[p]robation is a matter of

      grace left to trial court discretion, not a right to which a criminal defendant is

      entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting Prewitt v.

      State, 878 N.E.2d 184, 188 (Ind. 2007)). Like the decision to grant probation,

      the decision to revoke probation also rests with the sole discretion of the trial

      court. See Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). And its decision is

      reviewed on appeal only for abuse of that discretion. Prewitt, 878 N.E.2d at

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

      and effect of the facts and circumstances before the court. Washington v. State,

      784 N.E.2d 584, 587 (Ind. Ct. App. 2003).


[6]   Acknowledging three failed drug screens and missing four sessions of substance

      abuse treatment, Wyatt argues he presented evidence at the hearing that

      “explains and mitigates his violation.” Appellant’s Br. p. 9. For example

      Wyatt testified that he was not compliant with substance abuse treatments




      7
        For example throughout his brief Wyatt consistently frames the argument as “[t]he trial court
      abused its discretion in revoking three (3) years and one hundred eighty (180) days of Wyatt’s
      four (4) years [sic] suspended sentence.” Appellant’s Br. pp. 5, 6, 7, 10; see also Tr. Vol. 1 p. 15
      (conceding “[Wyatt] is going to have to take a consequence” for violating probation; but
      disagreeing that the “entire revocation, the entire period of time is appropriate.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018           Page 4 of 7
      because of “[m]y job. I wasn’t able to make it because I was working most of

      the time. . . .” Tr. Vol. 1 p. 8. According to Wyatt his “biggest obstacle was

      failing to address his substance abuse issues with outpatient treatment.”

      Appellant’s Br. p. 9 (quoting Tr. Vol. 1 p. 19). In his argument before the trial

      court counsel conceded that the then thirty-five year old Wyatt has a “bad

      record”8 and offered that his client “also appears to have an addiction problem .

      . . .” Tr. Vol. 1 p. 14. In pressing for a sanction other than full revocation

      counsel argued: “What it boils down to is, he had a relapse. . . .” Tr. Vol. 1 p.

      14.


[7]   In this appeal Wyatt advances a similar theme contending the revocation as

      ordered by the trial court “was not warranted considering the nature and

      circumstances surrounding his probation violation.” Appellant’s Br. p. 10.

      According to Wyatt, “the trial court bypassed more effective sanctions that

      could have provided Wyatt with treatment and assisted in his successful reentry

      into society.” Id.


[8]   The trial court rejected Wyatt’s claim that drug dependency or employment was

      to blame for Wyatt’s probation violation. The trial court explained for

      example:




      8
       The presentence investigation report for the underlying offenses detailing Wyatt’s criminal
      history is not included in the record before us. However, at the dispositional hearing the
      probation officer testified in part that Wyatt has “four (4) felony convictions, thirteen (13)
      misdemeanor convictions, five (5) prior probation violations. This would be the sixth (6th)
      and he has been to prison five (5) times.” Tr. Vol. 1 p. 12.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018         Page 5 of 7
              Mr. Wyatt was given the opportunity to help deal with the
              substance abuse and he chose not to do it. He claims that it was
              because he didn’t have time because of work. Given his history,
              this is the number one (1) priority and I am not impressed to
              [hear him] say that work is the reason why this wasn’t done.


      Tr. Vol. 1 p. 17. As this court has recently observed, if the trial court

      determines a probationer has violated a term of probation, then the court may

      impose one or more of the following sanctions:


              (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 (1) 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.

      Knecht v. State, 85 N.E.3d 829, 839-40 (Ind. Ct. App. 2017) (citing Ind. Code §

      35-38-2-3(h) (2015)). Here, the trial court ordered execution of part of Wyatt’s

      suspended sentence under subsection (h)(3).


[9]   Wyatt’s revocation was not an abuse of discretion. Wyatt does not contest that

      he violated probation and it is not at all clear how the trial court may have

      abused its discretion by exercising an option clearly provided by statute. In

      addition Wyatt repeatedly violated his probation not only in this case but on

      prior occasions as well. See n. 8. Given Wyatt’s multiple probation violations,

      past criminal history, and unwillingness or inability to address his apparent

      substance abuse issues, the trial court’s revocation of all but six months of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018   Page 6 of 7
       Wyatt’s four-year probationary term was consistent with the logic and effect of

       the facts and circumstances before the trial court. In sum the trial court acted

       well within its discretion in revoking Wyatt’s probation.


                                                Conclusion
[10]   We affirm the judgment of the trial court.


[11]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018   Page 7 of 7
