MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jul 22 2019, 9:12 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew T. Bates                                         Curtis T. Hill, Jr.
R. Patrick Magrath                                       Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
                                                         Courtney Staton
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Hamer,                                           July 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1016
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff.                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1512-CM-809



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019                     Page 1 of 10
                                Case Summary and Issue
[1]   In 2017, Michael Hamer pleaded guilty to two counts of operating a vehicle

      while intoxicated and one count of driving while suspended, all Class A

      misdemeanors, with an habitual vehicular substance offender enhancement.

      Hamer was sentenced to serve 1,800 days with 790 days executed and 1,010

      days suspended to formal probation. In 2018, while Hamer was on home

      detention, the State filed a petition to revoke probation, alleging that Hamer

      failed three breathalyzer tests and failed to appear for two monthly meetings

      with his case manager. At a hearing, Hamer admitted the violations and the

      trial court revoked his probation and ordered him to serve half of his previously

      suspended sentence in the Decatur County Jail. Hamer appeals, raising one

      issue for our review, namely whether the trial court abused its discretion in

      imposing this sanction for his probation violation. Concluding the trial court

      did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On December 21, 2015, the State charged Hamer with one count of operating a

      vehicle while intoxicated, a Class A misdemeanor. The State later amended the

      charging information to include an habitual vehicular substance offender

      enhancement. While the case was pending, Hamer was charged under a

      separate cause number with operating a vehicle while intoxicated and driving

      while suspended, both Class A misdemeanors. The parties entered into a plea



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 2 of 10
      agreement to resolve both cases in which Hamer pleaded guilty as charged and

      his executed sentence was capped at three years.


[3]   On July 14, 2017, the trial court accepted the plea agreement, entered judgment

      of conviction, and sentenced Hamer to 1,800 days in the Decatur County Jail,

      with 790 days executed and 1,010 days suspended to formal probation. The

      conditions of Hamer’s probation included home detention for 360 days and

      monthly meetings with his case manager. He was also prohibited from

      possessing or consuming alcohol.


[4]   Hamer’s probation began July 14, 2017 and was scheduled to end April 19,

      2020. He began home detention on January 9, 2018, and several months later,

      Hamer’s probation officer filed a Verified Petition for Revocation of Probation,

      alleging that Hamer violated the conditions of probation by failing portable

      breath tests on January 19, February 2, and February 5, 2018. The petition also

      alleged that Hamer failed to appear for two scheduled monthly meetings with

      his case manager while on home detention. The trial court held a fact-finding

      hearing on April 4 and found Hamer in violation of the conditions of his

      probation. In imposing a sanction for the violation, the trial court stated:


              In deciding what the sanction ought to be, I am going to give
              some consideration to the fact that Mr. Hamer did make some
              effort. He’s trying to make some effort to it. I’m also going to
              consider that Community Corrections made efforts to help him
              with his addiction and to overcome his problems by entering into
              a sanctions agreement rather than filing a petition immediately.
              So, I think they made some effort; he made some effort.
              Nonetheless, he is in violation.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 3 of 10
Transcript of Evidence, Volume 2 at 23-24.1 The trial court revoked half (505

days) of Hamer’s previously suspended sentence and ordered it to be served in

the Decatur County Jail. Hamer’s probation was terminated as unsuccessful.

Hamer now appeals. Additional facts will be supplied as necessary.



                           Discussion and Decision
                                I. Standard of Review
        Probation is a matter of grace and a conditional liberty which is a
        favor, not a right. The trial court determines the conditions of
        probation and may revoke probation if those conditions are
        violated. The decision to revoke probation is within the sole
        discretion of the trial court. And its decision is reviewed on
        appeal for abuse of that discretion. An abuse of discretion occurs
        when the decision is clearly against the logic and effect of the
        facts and circumstances before the court. Further, on appeal “we
        consider only the evidence most favorable to the judgment
        without reweighing that evidence or judging the credibility of the
        witnesses. If there is substantial evidence of probative value to
        support the trial court’s decision that a defendant has violated
        any terms of probation, the reviewing court will affirm its
        decision to revoke probation.” Woods v. State, 892 N.E.2d 637,
        639-40 (Ind. 2008) (citation omitted).




1
  After Hamer tested positive for alcohol on January 19, he signed a sanction agreement, in which he
acknowledged his violation and agreed to complete ten hours of community service, a six-week addiction
program, and write a two-page paper on how using alcohol affects him. See Appellant’s Appendix, Volume 2
at 55. Hamer again tested positive for alcohol on February 2 and entered into another sanction agreement
requiring that he complete an additional eight hours of community service scheduled for March 3. Three
days later, Hamer tested positive for alcohol and entered into another agreement requiring that he contact
River Valley Resource and complete a workshop.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019                 Page 4 of 10
      Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012) (some citations

      omitted). In addition, a defendant is entitled to challenge the sanction a trial

      court decides to impose after revoking probation. Stephens v. State, 818 N.E.2d

      936, 939 (Ind. 2004). And we review a trial court’s sentencing decisions for

      probation violations for an abuse of discretion. Knecht v. State, 85 N.E.3d 829,

      840 (Ind. Ct. App. 2017).


                         II. Sanction for Probation Violation
[5]   As our supreme court has explained, the revocation of an individual’s probation

      is a two-step process. Woods, 892 N.E.2d at 640. “First, the court must make a

      factual determination that a violation of a condition of probation occurred. If a

      violation is proven, then the trial court must determine if the violation warrants

      revocation of probation.” Id. If the trial court finds that a violation of

      probation has occurred, it 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.


      Ind. Code § 35-38-2-3(h).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 5 of 10
[6]   Here, as authorized by statute, the trial court ordered that Hamer execute 505

      days of his previously suspended sentence of 1,010 days. Although Hamer

      admitted to the violations, he challenges the trial court’s imposition of this

      particular sanction by arguing it was an abuse of discretion. Specifically, he

      contends that his sanction is disproportionately harsh in light of the following

      factors: he admitted to consuming alcohol and that he struggles with alcohol; he

      was honest about his violations; he demonstrated a willingness to deal with his

      issues; he complied with the sanctions imposed by Community Corrections for

      the violations, including additional community service hours, a six-week

      alcohol addiction program, and a two-page paper on how alcohol affects him;

      and after each missed meeting with his case manager, he showed up the

      following morning at 8:30 a.m.


[7]   In support of his arguments, Hamer relies on this court’s decision in Johnson v.

      State, in which we held that the trial court abused its discretion by revoking the

      defendant’s placement in a community corrections program and ordering him

      to serve the entirety of his sentence in prison. 62 N.E.3d 1224, 1231-32 (Ind.

      Ct. App. 2016). The defendant had been placed on home detention requiring

      him to remain inside his apartment and pay community corrections fees. At

      times, he was near the apartment rather than inside of it. Given the defendant’s

      cognitive deficits, limited resources, previous success in work release, the trial

      court’s harsh sentence, and the technical nature of the violation, this court

      concluded the trial court abused its discretion by ordering the defendant to

      execute the entirety of his sentence. Id. Hamer asserts that the Johnson court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 6 of 10
      “relied on a line of precedent reversing unduly harsh sentences for minor

      probation violations[.]” Appellant’s Brief at 10.


[8]   In support of its conclusion, the Johnson court relied on Sullivan v. State, 56

      N.E.3d 1157 (Ind. Ct. App. 2016); Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App.

      2012); and Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011). In Sullivan,

      the trial court revoked the defendant’s community corrections placement after

      he failed to report and, as a sanction, ordered him to serve the entirety of his

      eighteen-month sentence in prison. 56 N.E.3d at 1160. This court concluded

      the trial court abused its discretion by revoking the defendant’s placement and

      ordering him to serve his sentence in prison because he was in the hospital at

      the time he was to report, contacted his attorney, and was under the impression

      his counsel would contact the court and community corrections. Id. at 1162.

      Moreover, in Ripps, this court reversed the trial court’s order revoking the

      defendant’s probation and ordering him to serve the remainder of his two year

      and two-hundred and sixty-six-day sentence in prison for failing to register as a

      sex offender and residing within 1,000 feet of a public park or youth center. 968

      N.E.2d at 326-27. The defendant had moved into an assisted-living facility to

      receive care for his medical conditions, which was 980 feet from a public

      library. In concluding the trial court abused its discretion, the court explained:


              [The defendant] was sixty-nine years old and suffering from
              serious health issues, including terminal cancer; he was
              attempting to adhere to his probation conditions, as evidenced by
              his going to the sheriff’s office to register his new address;
              although he was initially in violation of the residency restriction,
              evidence reveals he was taking steps to correct the violation by
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 7 of 10
        finding a new residence; while he did live within 1,000 feet of the
        public library, this was only so by about twenty feet and some
        ambiguity exists in how this distance was measured; and last,
        [the defendant] previously served time in prison for a crime that
        was later vacated as violative of our constitutional ex post facto
        provision.


Id. at 328. Under the totality of these circumstances, we held the trial court

abused its discretion by revoking the defendant’s probation and ordering him to

serve the remainder of his sentence in prison. Id. Lastly, in Puckett, a panel of

this court held that the trial court abused its discretion by revoking the

defendant’s probation for failing to register as a sex offender, a condition of

probation, and ordering him to serve his entire previously suspended sentence

for his child molesting conviction in prison. 956 N.E.2d at 1188. In reaching

this conclusion, this court reasoned that the trial court relied on improper

factors in imposing its sanction. Id. at 1187. Specifically, the trial court

expressed its dissatisfaction with the defendant’s original plea– believing it was

too lenient, a “very generous” agreement for what it considered to be a

“horrendous crime[,]” and that the defendant should have been convicted of a

more serious crime. Id. Although this court acknowledged the importance of

the sex offender registry, this court concluded that the trial court’s discussion on

the importance of the registry did not reveal anything egregious about the

defendant’s failure to register and the defendant was also punished separately

for not registering. Id. at 1188. Therefore, under the particular circumstances

of the case, we concluded the trial court’s sanction was an abuse of discretion.

Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 8 of 10
[9]    However, the circumstances of Hamer’s violations are clearly distinguishable

       from these cases. Hamer repeatedly violated the terms of his probation

       prohibiting him from possessing or consuming alcohol and requiring him to

       attend monthly meetings. The record reveals that on January 19, February 2,

       and February 5, 2018, Hamer failed a portable breath test by registering a

       .116%, .117%, and .036% blood alcohol concentration respectively. Hamer

       also failed to appear for two scheduled monthly meetings with his case

       manager.


[10]   We disagree with Hamer that the sanction is too harsh. At the fact-finding

       hearing, the trial court gave “some consideration to the fact that Mr. Hamer did

       make some effort. He’s trying to make some effort to it.” Tr., Vol. 2 at 23. It

       also considered community corrections’ efforts in attempting to help Hamer

       overcome his addiction issues by providing a several sanctions agreement

       instead of immediately filing a petition to revoke. The trial court concluded, “I

       think [community corrections] made some effort; [Hamer] made some effort.

       Nonetheless, [Hamer] is in violation.” Id. at 24. An evaluation of the record

       reveals that the trial court took these factors into account, consciously balanced

       Hamer’s efforts with his repeated failures despite efforts by community

       corrections to assist him, and carefully constructed an appropriate sanction.

       Ultimately, the trial court revoked half of Hamer’s previously suspended 1,010-

       day sentence rather than revoke his entire sentence, a decision within its sole

       discretion. See Ripps, 968 N.E.2d at 326. As previously noted, “[p]robation is a

       matter of grace and a conditional liberty which is a favor, not a right.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 9 of 10
       Under the circumstances here, we cannot conclude the trial court abused its

       discretion.



                                               Conclusion
[11]   For the reasons set forth above, we conclude the trial court did not abuse its

       discretion by revoking Hamer’s probation and ordering him to serve half of his

       previously suspended sentence in jail. Accordingly, the judgment of the trial

       court is affirmed.


[12]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019   Page 10 of 10
