      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                    FILED
      regarded as precedent or cited before any                                Apr 23 2019, 10:26 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      John Jacob Warrum                                        Curtis T. Hill, Jr.
      Mount Vernon, Indiana                                    Attorney General of Indiana
                                                               Henry A. Flores, Jr.
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Shane J. Thomas,                                         April 23, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1986
              v.                                               Appeal from the Posey Superior
                                                               Court
      State of Indiana,                                        The Honorable S. Brent Almon,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               65D01-1712-F6-721



      Mathias, Judge.


[1]   Shane J. Thomas (“Thomas”) appeals the order of the Posey Superior Court

      revoking his probation and ordering him to serve the balance of his previously


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019                    Page 1 of 6
      suspended sentence in the Department of Correction. Thomas argues that the

      trial court abused its discretion in imposing the balance of his sentence because,

      he claims, he violated the terms of his probation only due to his fear of being

      unable to pay his probation fees.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On December 19, 2017, the State charged Thomas with Level 6 felony

      operating a vehicle while intoxicated endangering a person; Level 6 felony

      operating a vehicle while intoxicated with a prior conviction; Class A

      misdemeanor operating a vehicle while intoxicated endangering a person; Class

      C misdemeanor operating a vehicle while intoxicated; and driving while

      suspended, an infraction.


[4]   On January 30, 2018, Thomas entered into an agreement with the State

      whereby he pleaded guilty to Level 6 felony driving while intoxicated with a

      prior conviction and driving while suspended. In exchange, the State dismissed

      the remaining charges. The trial court sentenced Thomas to two years, with six

      months executed, and eighteen months suspended to probation.1




      1
       At the time of sentencing, Thomas had served eighty-eight days in pre-trial detention and earned an
      additional eighty-eight days of good-time credit. Thus, he had approximately only one week remaining of his
      executed sentence to serve.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019                  Page 2 of 6
[5]   Less than two months later, on March 9, 2018, the State filed a petition to

      revoke Thomas’s probation, alleging that he had violated the terms of his

      probation by failing to attend scheduled visits with his probation officer, failing

      to return the telephone calls of his probation officer, missing three scheduled

      drug screenings, and failing to call the probation department daily as instructed.

      At a revocation hearing held on June 5, 2018, Thomas admitted to violating the

      terms of his probation as alleged in the petition. Tr. pp. 4–7. The trial court then

      held a dispositional hearing on July 16, 2018, at which it ordered Thomas to

      serve the balance of his previously suspended eighteen-month sentence.

      Thomas now appeals.


                                     Discussion and Decision

[6]   To revoke probation, the trial court must make two determinations under

      Indiana Code section 35-38-2-3. First, the court must find that a violation has

      occurred by a preponderance of the evidence. Ind. Code § 35-38-2-3(f). Here,

      Thomas admitted to violating the terms of his probation, and he therefore

      makes no argument on appeal that the trial court erred by finding that he

      violated the terms of his probation.


[7]   Second, if this threshold is met, the trial court has three options: (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 year beyond

      the original probationary period, or (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-1986 | April 23, 2019   Page 3 of 6
[8]    On appeal, we review a trial court’s sentencing decision in a probation

       revocation proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d

       1146, 1148 (Ind. Ct. App. 2005). A trial court abuses its discretion only if its

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).


[9]    In the present case, Thomas argues that the trial court abused its discretion by

       ordering him to serve the balance of his previously suspended sentence. As we

       have recognized in our prior cases:


              Once a trial court has exercised its grace by ordering probation
              rather than incarceration, the judge should have considerable
              leeway in deciding how to proceed. If this discretion were not
              given to trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation. . . .


       Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013) (citing Prewitt v.

       State, 878 N.E.2d 184, 187 (Ind. 2007)) (internal quotation marks omitted),

       trans. denied.


[10]   Thomas admitted that he failed to show up for scheduled appointments, failed

       to return calls from his probation officer, and missed three scheduled drug

       screens. These are not minor or technical violations, and they all occurred only

       a few weeks after Thomas was released on probation. In addition, the pre-

       sentence investigation report showed that Thomas had been charged with

       possession of marijuana in another county. Furthermore, Thomas had been

       placed on probation in the past but had never successfully completed probation.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019   Page 4 of 6
       Under these facts and circumstances, the trial court was well within its

       discretion to order Thomas to serve the balance of his previously suspended

       sentence. See Sanders v. State, 825 N.E.2d 952, 958 (Ind. Ct. App. 2005) (holding

       that trial court did not abuse its discretion by ordering defendant to serve the

       entirety of her previously suspended sentence where she admitted to probation

       violations), trans. denied.


[11]   Thomas’s main argument on appeal is that the trial court should have shown

       him more lenience because he claimed that he failed to show up to his

       appointments because he was unable to pay his probation fees. However, the

       trial court was under no obligation to credit Thomas’s self-serving testimony in

       this regard. Moreover, the trial court directly addressed Thomas’s excuse,

       saying:


               Mr. Thomas, one of the deals here is instead of, well, I may not
               be able to pay, I give up, you go in and proactively talk to your
               probation officer about that and resolve the issue. It’s not an
               excuse just to wander off and not participate in probation or miss
               meetings, and nobody gets revoked for inability to pay.


       Tr. p. 22. We agree wholeheartedly. If Thomas was truly concerned about his

       ability to pay, he should have spoken with his probation officer. Missing

       appointments and, more importantly, drug screens, was simply not an option.


[12]   For all of these reasons, we are unable to say that the trial court abused its

       considerable discretion by ordering Thomas to execute the balance of his




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019   Page 5 of 6
       previously suspended sentence. Accordingly, we affirm the judgment of the trial

       court.

[13]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019   Page 6 of 6
