MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Aug 12 2016, 9:51 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bradley Dyer,                                            August 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A05-1604-CR-888
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         69D01-1312-FD-179



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016         Page 1 of 4
                                             Case Summary
[1]   Bradley Dyer appeals the trial court’s revocation of his probation. The sole

      issue presented for our review is whether the trial court abused its discretion

      when it revoked Dyer’s probation and ordered him to serve his entire suspended

      sentence. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   In December 2013, Dyer had a fistfight with a police officer who intervened

      when he realized that Dyer was about to hit a woman. Dyer was charged with

      class D felony battery on a law enforcement officer, class D felony resisting law

      enforcement, and class B misdemeanor public intoxication. In November 2014,

      Dyer pled guilty to battery on a law enforcement officer pursuant to a plea

      agreement under which he would receive a thirty-six-month sentence with

      twenty-four months suspended to probation and the State would dismiss the

      remaining charges. The trial court sentenced Dyer in accordance with the plea

      agreement.


[3]   In March 2016, while on probation, Dyer was charged with class A

      misdemeanor operating a vehicle while intoxicated endangering a person. The

      State filed a petition to revoke his probation. At the revocation hearing, Dyer

      admitted that he violated probation by committing a new criminal offense. The

      trial court revoked Dyer’s probation and ordered him to serve his twenty-four-

      month suspended sentence. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016   Page 2 of 4
                                     Discussion and Decision
[4]   “Probation is a matter of grace left to trial court 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 has discretion to determine the conditions of probation

      and may revoke probation if the conditions are violated. Heaton v. State, 984

      N.E.2d 614, 616 (Ind. 2013).


[5]   Probation revocation involves a two-step process. “First, the court must make a

      factual determination that a violation of a condition of probation actually

      occurred. If a violation is proven, then the trial court must determine if the

      violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d

      533, 537 (Ind. Ct. App. 2009) (citation omitted), trans. denied. The probationer

      must be given an opportunity to offer evidence that mitigates his violation. Id.

      If the court determines that probation has been violated it may continue the

      person on probation, extend the probationary period for no more than a year

      beyond the original probationary period, or order execution of all or part of the

      previously suspended sentence. Ind. Code § 35-38-2-3(h). Where a trial court

      has exercised its grace in granting a defendant probation rather than

      incarceration, it has considerable leeway in deciding how to proceed when the

      defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at

      188. We review a trial court’s decisions to revoke probation for an abuse of

      discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse

      of discretion occurs when the court’s decision is clearly against the logic and

      effect of the facts and circumstances. Prewitt, 878 N.E.2d at 188.

      Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016   Page 3 of 4
[6]   Citing Prewitt, Dyer contends that the execution of his entire suspended

      sentence was not the “most effective and appropriate” sanction and asks that

      we reduce his sentence to one year in jail, which would allow him “time to

      consider the error of his ways but permit him to be released in a reasonable

      amount of time so he could begin an addiction treatment program.”

      Appellant’s Br. at 8. Neither Prewitt nor Indiana Code Section 35-38-2-3

      imposes a “most effective and appropriate” requirement. Dyer directs us to

      self-serving testimony during the revocation hearing that he “messed up” and

      “was trying to do right and get home and just trying to take care of [his] kids,”

      which the trial court considered as a mitigating circumstance. Tr. at 17.

      However, Dyer’s behavior belies his claim because he continues to engage in

      illegal behavior when he has consumed alcohol. Under the circumstances, we

      cannot say that the trial court abused its discretion in revoking Dyer’s probation

      and ordering him to serve his entire suspended sentence. Therefore, we affirm.


[7]   Affirmed.


      Kirsch, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016   Page 4 of 4
