MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Nov 26 2018, 6:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      CLERK
                                                                           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
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana                                        George P. Sherman
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA
Leslie J. Vickers,                                      November 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-932
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff.                                     Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1210-FC-226



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018                   Page 1 of 5
[1]   Leslie J. Vickers (“Vickers”) appeals the Dearborn Superior Court’s revocation

      of his probation, arguing the trial court abused its discretion when it ordered

      him to serve six years of his previously suspended sentence.


[2]   We affirm.


                                 Facts and Procedural History

[3]   In May of 2013, Vickers pleaded guilty to Class C felony forgery. He had made

      approximately $650 of unauthorized purchases using another individual’s debit

      card. At the time of his forgery conviction, Vickers’s criminal history included a

      2013 active warrant for dealing less than two grams of heroin, a 2012 active

      warrant for fraudulent use of a credit card, a 2012 conviction for operating on a

      suspended driver’s license, an operating while intoxicated conviction, two

      possession of marijuana convictions, and a 2007 dealing in marijuana

      conviction.

[4]   The trial court accepted the plea and on June 4, 2013, imposed a sentence of

      eight years imprisonment with seven years suspended to probation. In April of

      2014, his probation was transferred to Kentucky.


[5]   In August of 2015, the State of Indiana requested revocation of Vickers’s

      probation in this matter due to several alleged violations. Specifically, the State

      alleged that Vickers was indicted in Hamilton County, Ohio for committing a

      level four felony vehicular assault and a level three felony aggravated vehicular

      assault. He had overdosed on heroin and struck another vehicle, causing injury

      to another driver. Vickers pleaded guilty to a level three felony aggravated
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018   Page 2 of 5
      vehicular assault and was sentenced to two years imprisonment in the Ohio

      Department of Correction. In its petition for revocation, the State also alleged

      that Vickers had left Kentucky without permission and that he had not resided

      at the location approved by probation for approximately six weeks prior to his

      arrest.


[6]   After Vickers completed his Ohio sentence, the trial court held a hearing in this

      matter, and Vickers admitted he had violated his probation as alleged. The trial

      court revoked Vickers’s probation and ordered him to serve six years of his

      previously suspended sentence, with the seventh year to be served on release.

      Vickers appeals, arguing that the trial court abused its discretion.


                                     Discussion and Decision

[7]   Probation is a matter of grace left to the trial court’s 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 determines the conditions of probation and may

      revoke probation if the conditions are violated. Id. On appeal, “a trial court’s

      sentencing decisions for probation violations are reviewable using the abuse of

      discretion standard.” Id. An abuse of discretion occurs where the trial court’s

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

      before the court. Id. Further, on appeal, we consider only the evidence most

      favorable to the judgment without reweighing that evidence or judging the

      credibility of the witnesses. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). If

      there is substantial evidence of probative value to support the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018   Page 3 of 5
      decision that a defendant has violated any terms of probation, the reviewing

      court will affirm its decision to revoke probation. Id.


[8]   Vickers primarily argues that Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App.

      2016), and the line of cases upon which it relies are persuasive. We disagree. In

      Johnson, our court determined that a trial court abused its discretion by ordering

      a defendant to serve the entirety of the remaining portion of his executed

      sentence in the Department of Correction (“DOC”) for being “out of place” for

      short times and moving GPS equipment while on electronic monitoring

      because those violations were minor in relation to the severity of the revocation

      of probation. Id. at 1231. In Sullivan v. State, 56 N.E.3d 1157 (Ind. Ct. App.

      2016), our court found the trial court abused its discretion by ordering an

      offender to serve the remainder of his sentence executed in the DOC for the

      failure to report to his community corrections placement because he was

      hospitalized at a mental health facility. Id. at 1162. In Ripps v. State, the

      violation was technical in nature, and it was unclear if he had violated the terms

      of his sex offender probation by committing a new offense by living near a

      public park and youth center because he was residing in an assisted care facility

      due to a medical condition. 968 N.E.2d 323, 328 (Ind. Ct. App. 2012). In

      Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), we reversed the trial

      court’s probation revocation due to its reliance on factors outside of the

      probation revocation allegations. Id. at 1187–88.


[9]   Here, Vickers not only left Kentucky without permission and failed to reside at

      his approved residence for six weeks, he committed Level 3 felony aggravated

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018   Page 4 of 5
       assault for injuring someone while he was driving during an overdose. We

       cannot agree with Vickers that he committed only a minor or technical

       violation. Nor does the record show that the trial court relied on evidence or

       allegations outside of the revocation proceedings. Accordingly, we find no

       abuse of discretion by the trial court.


[10]   Vickers also alleges that several factors are mitigating to his probation

       violations. Specifically, Vickers points to his acceptance of responsibility for the

       violations, the substance abuse programming he completed as well as the

       employment he held while incarcerated in the Ohio Department of Corrections.

       Vickers also testified that he intended to work on a road project in Kentucky

       upon release. Any argument that these factors should outweigh the severity of

       his probation violations amount to a request to reweigh the evidence, which is

       not our role on appellate review.


                                                Conclusion

[11]   Because the trial court relied on sufficient evidence that Vickers’s violations

       were severe, and because we will not reweigh the evidence, we affirm the trial

       court’s revocation of Vickers’s probation.


[12]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018   Page 5 of 5
