MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 27 2017, 10:37 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
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erik Peetz,                                              July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1701-CR-237
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1601-F6-110



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017             Page 1 of 5
                                Case Summary and Issue
[1]   Erik Peetz appeals the trial court’s finding he had violated the terms of his

      probation and order that he serve his suspended sentence in the Indiana

      Department of Correction (“DOC”), raising two issues for our review, which

      we consolidate and restate as whether the trial court abused its discretion in

      revoking his probation. Concluding the trial court did not abuse its discretion,

      we affirm.



                            Facts and Procedural History
[2]   In 2015, Peetz was convicted of theft and conversion and sentenced to one year

      in the DOC, fully suspended to probation. In early 2016 and while Peetz was

      still serving probation, the State charged Peetz under this cause with several

      new offenses, including possession of methamphetamine and possession of a

      syringe as Level 6 felonies. On September 27, 2016, Peetz was convicted of

      possession of a syringe as a Level 6 felony and the trial court sentenced him to

      two years in the DOC, fully suspended to probation.


[3]   On October 13, 2016, the State filed a notice of a probation violation in this

      cause, alleging Peetz failed to attend probation orientation on two occasions,

      travelled out of state without permission, and failed to pay probation fees. The

      trial court then issued a warrant for Peetz’s arrest. Peetz had knowledge of the

      warrant but did not turn himself in. At some point, law enforcement located

      Peetz, who fled on foot and hid behind a dumpster. Peetz was arrested.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017   Page 2 of 5
[4]   At a hearing on December 15, 2016, Peetz admitted to violating the conditions

      of his probation as alleged in the notice of probation violation. Relevant below,

      Peetz also addressed how he previously violated the probation he was serving

      from his theft and conversion convictions by using methamphetamine in 2015.1

      Following the hearing, the trial court issued an order revoking Peetz’s probation

      and ordering him to serve the balance of his sentence in the DOC, explaining,

      “[Peetz] admits that he is in violation of his probation by using

      Methamphetamine on or about the 14th day of May, 2015.” Appellant’s

      Appendix, Volume 2 at 9. On January 4, 2016, the trial court issued an abstract

      of judgment explaining Peetz’s probation was revoked due to “Technical

      Violations: Failure to Report.” Id. at 7. This appeal ensued.



                                   Discussion and Decision
                                        I. Standard of Review
[5]   Probation is a matter of grace left to trial court discretion and an appeal from

      the revocation of probation is reviewed for an abuse of discretion. Heaton v.

      State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs if the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances or if the trial court misinterprets the law. Id. “Probation

      revocation is a two-step process. First, the trial court must make a factual




      1
        It is not clear from the record whether this conviction resulted in the revocation of Peetz’s probation under
      the previous cause.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017                  Page 3 of 5
      determination that a violation of a condition of probation actually

      occurred. Second, if a violation is found, then the trial court must determine

      the appropriate sanctions for the violation.” Id. (citation omitted). As to the

      first step, the State must prove the defendant violated a condition of probation

      by a preponderance of the evidence. Id. at 617.


                                     II. Probation Violation
[6]   Peetz argues the trial court erred in finding he violated probation on the basis he

      admitted to using methamphetamine in 2015 in a separate cause and therefore

      there is insufficient evidence to support a finding that he violated probation in

      this cause. We disagree.


[7]   At the outset, it appears the trial court was confused in noting Peetz’s

      methamphetamine use in 2015 supported the revocation of his probation in this

      cause because: 1) Peetz was not ordered to begin serving probation in this cause

      until September 2016, and 2) the abstract of judgment stated Peetz’s failure to

      report was the basis for the revocation. In any event, the record demonstrates

      Peetz admitted to violating multiple conditions of his probation, including

      failing to report to orientation on two occasions and failing to seek permission

      before travelling out of state. Thus, although the trial court’s order erroneously

      cites to Peetz’s 2015 methamphetamine use, there is sufficient evidence in the

      record to support the trial court’s finding that Peetz violated probation on other

      bases.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017   Page 4 of 5
                                               III. Sanction
[8]    Peetz also argues the trial court abused its discretion in ordering him to serve

       the balance of his sentence in the DOC. Specifically, he contends the trial court

       failed to take into consideration certain mitigating circumstances. However,

       “trial courts are not required to balance aggravating or mitigating circumstances

       when imposing sentence in a probation revocation proceeding.” Treece v. State,

       10 N.E.3d 52, 59 (Ind. Ct. App. 2014) (citation omitted), trans. denied. In

       addition, Peetz violated at least three separate conditions of probation within

       just days of being placed on probation, failed to turn himself in to law

       enforcement despite knowing a warrant was out for his arrest, and attempted to

       flee from law enforcement. The trial court did not abuse its discretion in

       ordering Peetz to serve the balance of his sentence in the DOC.



                                               Conclusion
[9]    We conclude the trial court did not abuse its discretion in revoking Peetz’s

       probation. Accordingly, we affirm.


[10]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017   Page 5 of 5
