Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
                                                                          Oct 10 2014, 9:45 am
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CHRISTOPHER L. CLERC                            GREGORY F. ZOELLER
Columbus, Indiana                               Attorney General of Indiana

                                                LARRY D. ALLEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JONATHAN DAVID TURNER,                          )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 03A01-1403-CR-146
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


              APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                    The Honorable Stephen R. Heimann, Judge
                        Cause No. 03C01-1108-FD-4212
                        Cause No. 03C01-1211-FD-5702


                                     October 10, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                   Case Summary and Issue

          Jonathan Turner appeals the trial court’s order revoking his probation and ordering

him to serve the remainder of his sentence in the Department of Correction. Turner raises

one issue for our review, which we restate as whether the trial court abused its discretion

when imposing a sanction. Concluding that the trial court did not abuse its discretion, we

affirm.

                                 Facts and Procedural History

          On February 6, 2012, Turner was sentenced to two years, suspended to probation,

for theft (“Theft 1”). Thereafter, Turner was charged with a second theft (“Theft 2”)

resulting in a notice of violation of his probation for Theft 1. On April 29, 2013, Turner

pled guilty to Theft 2. In exchange for Turner pleading guilty to Theft 2, the State agreed

to dismiss the probation violation. Finally, on June 20, 2013, the trial court accepted

Turner’s guilty plea arising out of Theft 2 and sentenced Turner to three years, with

eighteen months in community corrections and eighteen months suspended to probation.

          On October 28, 2013, the State filed a petition to revoke Turner’s probation, in

regards to both Theft 1 and Theft 2, because he failed to pay the fees required by the

terms and conditions of his probation. Before the trial court ruled on the State’s petition,

the State amended its petition twice to account for subsequent probation violations. First,

the State amended its petition to include a third theft charge which resulted from Turner’s

alleged theft of merchandise from Walmart (“Theft 3”). Second, the State amended its

petition when Turner tested positive for heroin.



                                               2
       On March 3, 2014, the trial court held a hearing on the State’s petition to revoke

Turner’s probation.          Turner admitted that he violated probation by failing to pay

probation fees, committing Theft 3, and using heroin. Further, Turner informed the court

that he intended to plead guilty to Theft 3 in an attempt to reduce the charge from a Class

D felony to a Class A misdemeanor. Considering these facts and circumstances, the trial

court revoked Turner’s probation in both Theft1 and Theft 2 and ordered Turner to serve

the remainder of his suspended sentences in the Department of Correction, running

consecutively. In sum, Turner was sentenced to three and one-half years with thirteen

days of credit.1

       Turner now appeals the trial court’s decision to order him to serve the remainer of

his sentences in the Department of Correction.

                                         Discussion and Decision

       Turner argues that the trial court abused its discretion when it failed to give

mitigating weight to his admission of violating probation and ordered him to serve the

entirety of his suspended sentences. We disagree.

                                           I. Standard of Review

       Initially, we observe that “[p]robation is a matter of grace left to trial court

discretion, not a right to which a criminal defendant is entitled.” Berry v. State, 904

N.E.2d 365, 366 (Ind. Ct. App. 2009). “Probation revocation is a two-step process. First,

the court must make a factual determination that a violation of a condition of probation


       1
           Two years were ordered regarding Theft 1 and eighteen months were ordered regarding Theft 2.


                                                        3
actually has occurred. If a violation is proven, then the trial court must determine if the

violation warrants revocation of the probation.” Sanders v. State, 825 N.E.2d 952, 955

(Ind. Ct. App. 2005), trans. denied. If a defendant’s probation is revoked, the trial court

may apply 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).

       A trial court’s sentencing decision in a probation revocation hearing is reviewed

for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011).

“An abuse of discretion occurs if the trial court’s decision is against the logic and effect

of the facts and circumstances before the court.” Id. (citation omitted).

                            II. Sanction for Violating Probation

       Here, by Turner’s own admission, he violated probation.              Namely, Turner

admitted to violating probation by failing to pay probation fees, committing Theft 3, and

using heroin. Because Turner violated probation, the trial court had authority to revoke

Turner’s probation and sanction Turner in accordance with Indiana Code section 35-38-

2-3(h). Turner does not contend the trial court erred in revoking his probation under

these circumstances. Turner does argue that his admission amounts to a mitigating

circumstance which the trial court did not consider in imposing a sanction, resulting in an

abuse of discretion. In support, Turner relies on Anglemyer v. State, 868 N.E.2d 482


                                             4
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007) and Puckett, 956 N.E.2d at

1182, for the proposition that it is an abuse of discretion for a trial court to fail to consider

a mitigating factor in imposing a sanction under Indiana Code section 35-38-2-3(h).

       In Anglemyer, our supreme court granted transfer to address “the respective roles

of Indiana trial and appellate courts under the 2005 amendments to Indiana’s criminal

sentencing statutes.” 868 N.E.2d at 484 (emphasis added). In part, the defendant argued

the trial court had erred because it did not consider his guilty plea as a mitigating factor.

The court initially declined to address this mitigating factor because it was not raised at

sentencing, noting that, generally, “the trial court does not abuse its discretion in failing

to consider a mitigating factor that was not raised at sentencing.” Id. at 492.

       Thereafter, the court granted the defendant’s petition for rehearing on the sole

issue of whether the trial court should have considered the guilty plea as a mitigating

factor in sentencing. Anglemyer v. State, 875 N.E.2d 218, 219 (Ind. 2007). The court

affirmed its previous holding, but recognized a guilty plea as an exception because the

trial court is inherently aware of the guilty plea. Id. at 220. Consequently, a defendant

who pleads guilty, regardless of whether he argues to the trial court that his guilty plea is

a mitigating factor, is entitled to some mitigating weight at sentencing. Id.

       While Anglemyer does stand for the proposition that a defendant need not argue at

the trial court level that his guilty plea constitutes a mitigating factor in the context of

sentencing, the holding in Anglemyer is not applicable to the case at hand. Turner is

appealing from a probation revocation hearing, not the imposition of a sentence. Nothing

in Anglemyer can be read to stand for the proposition that it applies to a probation

                                               5
revocation hearing. Rather, Anglemyer expounds upon the history and application of the

2005 amendments to Indiana’s criminal sentencing statutes. Accordingly, the holding in

Anglemyer applies only when the initial sentence is being imposed and is inapplicable to

a sentence imposed following revocation of probation. See Berry, 904 N.E.2d at 366

(holding Anglemyer does not require a sentencing statement in a probation revocation

proceeding).

      In Puckett, the defendant was charged with two counts of child molesting as Class

B felonies. 956 N.E.2d at 1183. Pursuant to a plea agreement, the defendant pled guilty

to one count of child molesting as a Class C felony and was sentenced to four years

suspended to probation. Due to the defendant’s misconduct, the State filed multiple

petitions alleging the defendant violated his probation. The State’s petitions culminated

in a probation revocation hearing at which a special judge presided. At the hearing, the

trial court revoked the defendant’s probation and ordered him to serve four years

incarceration. Id. at 1185. In essence, the trial court reasoned that the defendant had

committed a horrendous crime; the original plea was far too lenient; and the original plea

was the result of incredible generosity on the part of the State because the defendant

should have been convicted of at least one Class B felony. Id.

      The defendant appealed, arguing that the trial court abused its discretion in the

sanction imposed. This court agreed and took issue with the trial court’s reasoning:

      [A] defendant who enters into a plea agreement is entitled to the benefits of
      that bargain, even in a later probation revocation proceeding. A trial court’s
      belief that a sentence imposed under such an agreement was “too lenient” is
      not a proper basis upon which to determine the length of a sentence to be
      imposed following a revocation of probation. We also hold that it is

                                            6
       improper when revoking probation for a trial court to find that the
       defendant actually committed a more serious crime than the one or ones of
       which he or she was originally convicted.

Id. at 1187.

       Turner’s reliance on Puckett is also misplaced. The crux of the court’s holding in

Puckett focused on how it was improper for a trial court, during a probation revocation

hearing, to consider whether or not the original plea was too lenient in choosing a

sanction. Here, the trial court did not collaterally attack Turner’s original sentence.

Rather, the trial court followed the terms of the original plea agreement. Turner points to

no evidence to the contrary.

       Moreover, Puckett does not stand for the proposition that a trial court must

consider mitigating factors when imposing a sanction after revoking probation. While

our supreme court has held a trial court has “statutory authority to order executed time

following revocation of probation that is less than the length of the sentence originally

suspended,” Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004), Turner points to no

authority which requires the trial court to do so because of mitigating factors. In fact, this

court has held that “trial courts are not required to balance aggravating or mitigating

circumstances when imposing [a] sentence in a probation revocation proceeding.” Treece

v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014) (quotation omitted), trans. denied. This

stems from the fact that a probation revocation hearing does not involve the imposition of

a sentence; rather, it is a proceeding to order the execution of a sentence already imposed.

See Mitchell v. State, 619 N.E.2d 961, 963-64 (Ind. Ct. App. 1993), overruled on other

grounds by Patterson v. State, 659 N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995).

                                              7
Consequently, the trial court did not abuse its discretion by not giving mitigating weight

to Turner’s admission.

        Contrary to Turner’s assertion, the facts and circumstances before the court

support its sanction ordering Turner to serve the entirety of his suspended sentences.

Once a probation violation occurs, the trial court is vested with statutory authority to

“[o]rder execution of all . . . of the sentence that was suspended at the time of initial

sentencing.” Ind. Code § 35-38-2-3(h)(3). Additionally, this court has held that “[a]s

long as the proper procedures have been followed in conducting a probation revocation

hearing, the trial court may order execution of a suspended sentence upon a finding of a

violation by a preponderance of the evidence.”2 Wilkerson v. State, 918 N.E.2d 458, 464

(Ind. Ct. App. 2009) (citation omitted).

        There is no doubt that Turner violated probation. By his own admission, Turner

violated probation when he failed to pay probation fees, committed Theft 3, and used

heroin. Additionally, and perhaps most troubling, is the fact that Turner violated his

probation by allegedly committing another theft, the exact same crime that led to him

being on probation in the first place. Probation restrictions “are designed to ensure that

the probation serves as a period of genuine rehabilitation and that the public is not

harmed by a probationer living within the community.” Bonner v. State, 776 N.E.2d

1244, 1247 (Ind. Ct. App. 2002), trans denied.                      In Turner’s case, the probation

restrictions did not achieve either of these goals. Given the facts at hand, we cannot say

        2
           Turner does not argue that the trial court did not follow the proper procedures during the probation
revocation hearing.


                                                      8
the trial court abused its discretion in ordering Turner to serve his entire suspended

sentences.

                                      Conclusion

      The trial court’s decision to order Turner to serve the entirety of his suspended

sentences was not against the logic and effect of the facts and circumstances before the

court. Therefore, we affirm.

      Affirmed.

BAKER, J., and KIRSCH, J., concur.




                                           9
