MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Oct 30 2017, 10:52 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Peterson, Jr.,                                 October 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         16A04-1706-CR-1335
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff.                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1203-FA-207



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017             Page 1 of 6
                                       Statement of the Case
[1]   Robert A. Peterson, Jr. appeals the trial court’s revocation of his probation. He

      raises one issue on appeal, namely, whether the trial court abused its discretion

      when it ordered him to serve the balance of his previously suspended sentence.

      We affirm.


                                 Facts and Procedural History
[2]   On March 22, 2012, the State charged Peterson with dealing in

      methamphetamine, as a Class A felony; possession of methamphetamine, as a

      Class B felony; possession of precursors, as a Class C felony; possession of a

      controlled substance, as a Class C felony; and resisting law enforcement, as a

      Class A misdemeanor. Peterson pleaded guilty to dealing in

      methamphetamine, as a Class B felony, and the State dismissed the remaining

      charges. The trial court sentenced Peterson to twelve years with six years

      suspended to probation.


[3]   On January 27, 2017, after Peterson had served two years of his probation, the

      State filed a petition to revoke his probation because it had charged Peterson in

      Cause No. 16D01-1701-F4-69 (“F4-69”) with unlawful possession of a firearm

      by a serious violent felon, a Level 4 felony; criminal recklessness, as a Level 6

      felony; and criminal mischief, as a Class A misdemeanor. On April 27,

      following a jury trial, a trial court entered judgment of conviction on the two

      felony counts in F4-69. At the ensuing probation revocation hearing in the

      instant cause on May 18, the trial court found that Peterson had violated the


      Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017   Page 2 of 6
      terms of his probation, and the court ordered Peterson to serve the balance of

      his suspended sentence, six years, in the Department of Correction. This

      appeal ensued.


                                     Discussion and Decision
[4]   Peterson argues that the trial court abused its discretion when, after revoking his

      probation, it ordered him to serve his entire previously suspended sentence.

      “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007); see also Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied.

      We review probation violation determinations and sanctions for an abuse of

      discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of

      discretion occurs where the decision is clearly against the logic and effect of the

      facts and circumstances, or when the trial court misinterprets the law.” Id.

      (citations omitted).


[5]   Probation revocation is a two-step process. First, the trial court must make a

      factual determination that a violation of a condition of probation actually

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

      determine the appropriate sanctions for the violation. Id. Indiana Code Section

      35-38-2-3(h) (2017) provides:


              If the court finds that the person has violated a condition at any
              time before termination of the period, and the petition to revoke
              is filed within the probationary period, the court may impose one
              (1) or more of the following sanctions:

      Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017   Page 3 of 6
              (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.


      Our Supreme Court has held that this statute “permits judges to sentence

      offenders using any one of or any combination of the enumerated powers.”

      Prewitt, 878 N.E.2d at 187. A single violation of a condition of probation is

      sufficient to permit the trial court to revoke probation. Treece, 10 N.E.3d at 59.


[6]   Here, Peterson does not dispute that the trial court had authority to sanction

      him pursuant to Indiana Code Section 35-38-2-3(h) given his convictions on

      two felony counts in F4-69 while on probation. Rather, Peterson maintains

      that the trial court abused its discretion when it failed to take into account the

      following alleged mitigating factors in imposing sanctions: his twenty-eight-

      year sentence for the two felony convictions in F4-69; his successful completion

      of a community transition program; and his successful completion of two years

      of his probation.


[7]   While probationers must be given the opportunity to present mitigating factors,

      Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), “trial courts are not required to

      balance aggravating or mitigating circumstances when imposing [a] sentence in

      a probation revocation proceeding,” Treece, 10 N.E.3d at 59 (quotation


      Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017   Page 4 of 6
      omitted). This stems from the fact that a probation revocation hearing does not

      involve the imposition of a sentence, but is a proceeding to consider 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). So long as the proper procedures

      have been followed in conducting a probation revocation, a trial court has

      discretion to order execution of a suspended sentence upon a finding of a

      violation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

      Therefore, we cannot say that the trial court abused its discretion when it

      refused to give weight to the mitigating factors Peterson raised.


[8]   The logic and effect of the facts and circumstances in this case support the trial

      court’s sanction for Peterson’s probation violation. At the time of the

      revocation hearing, Peterson’s criminal history included five felonies and five

      misdemeanors. And Peterson’s probation violation was significant: Peterson

      discharged a firearm “toward a vehicle” in a mobile home park where other

      people were present. Appellant’s App. Vol. 2 at 76. The trial court was well

      within its discretion to order Peterson to serve his entire previously suspended

      sentence. See Prewitt, 878 N.E.2d at 188 (holding trial court did not abuse its

      discretion in ordering defendant to serve previously suspended sentence when

      he had multiple probation violations, a past criminal history, and an inability to

      comply with ordered programs).


[9]   Affirmed.



      Court of Appeals of Indiana | Memorandum Decision 16A04-1706-CR-1335 | October 30, 2017   Page 5 of 6
Kirsch, J., and Brown, J., concur.




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