                                                            FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     May 24 2012, 8:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RONALD K. SMITH                                  GREGORY F. ZOELLER
Muncie, Indiana                                  Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID WEST,                                      )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A02-1111-CR-1013
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Marianne L. Vorhees, Judge
                              Cause No. 18C01-0801-FB-7



                                        May 24, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        David West appeals his sentence following the revocation of his probation. West

raises two issues, which we consolidate and restate as whether the trial court abused its

discretion in ordering him to serve the entirety of his previously-suspended sentence.1

We affirm.

        The relevant facts follow. In January 2008, West was charged with three counts of

criminal confinement as class B felonies. West was found guilty on one of the three

counts, and on July 3, 2008, he was sentenced to eight years with three years executed

and the balance suspended, and he was ordered to serve five years on supervised

probation. On October 6, 2010, West’s probation officer filed a petition for hearing on

revocation of supervised probation alleging, among other things, that West committed

crimes including two counts of child exploitation as class C felonies, four counts of

possession of child pornography, and three counts of performance before a minor that is

harmful to minors.

        On October 26, 2011, the court held a revocation hearing at which evidence was

presented that in August, 2011, West had been found guilty of a crime in Delaware

County of two counts of child exploitation as class C felonies and two counts of


        1
           West also challenges the appropriateness of the sentence imposed for his probation violation
under Ind. Appellate Rule 7(B). This rule provides that we “may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Prewitt v. State, 878 N.E.2d 184,
187-188 (Ind. 2007). However, the Indiana Supreme Court has held that Ind. Appellate Rule 7(B) is not
the correct standard to apply when reviewing a sentence imposed for a probation violation and that our
review is confined to the abuse of discretion standard which is also raised by West. See id. at 188; see
also Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (noting that a remedy under Ind. Appellate Rule
7(B) is not available on appeals from a probation revocation hearing); Milliner v. State, 890 N.E.2d 789,
793 (Ind. Ct. App. 2008) (noting that we do not review probation revocations under Ind. Appellate Rule
7(B) and that the court did not abuse its discretion in revoking the defendant’s probation), trans. denied.

                                                       2
possession of child pornography as class D felonies. The State asked the court to revoke

the entirety of West’s previously-suspended sentence. At the conclusion of the hearing,

the court stated:

       At this time then, as to Count 3, Attempted Criminal Confinement, a Class
       B felony, I really think with the time that’s going to have to be served in
       Circuit Court No. 3 that my only option is to go ahead and execute the five
       (5) year suspended sentence to the Department of Corrections. So I will
       find that due to the nature and circumstances of the violations, which
       involved two (2) Class C felony convictions and two (2) Class D felony
       convictions, that it would be appropriate to execute that suspended sentence
       to the Department of Correction.

Transcript at 11. The court ordered that West serve his previously-suspended sentence of

five years in the Department of Correction, and it granted West 418 days of credit for

time served in the Delaware County Jail.

       The issue is whether the court abused its discretion in ordering West to serve the

entirety of his previously-suspended sentence in the Department of Correction. West

argues that the court’s statement that “I really think with the time that’s going to have to

be served in Circuit Court No. 3 that my only option is to go ahead and execute the five

(5) year suspended sentence to the Department of Corrections” was “an improper

statement of the law” because Ind. Code § 35-38-2-3(g)(3) provides that the court “may

order execution of the sentence that was suspended at the time of the initial hearing.”

Appellant’s Brief at 6. West argues that the court was “under the mistaken impression

that it was mandatory on her part to order execution of the balance of the sentence” when

“[i]n fact, execution of the sentence is not mandatory, but permissive, and is only one of

several options that are available to the trial court.” Id. The State argues that West


                                             3
“adopts an unreasonably literal reading of the trial court’s statement that does not

consider the context in which the trial court imposed [West’s] sanction.” Appellee’s

Brief at 5.

       Ind. Code § 35-38-2-3(g) sets forth a trial court’s sentencing options if the trial

court finds a probation violation and provides:

       If the court finds that the person has violated a condition at any time before
       termination of the period, the court may impose one (1) 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(g). Ind. Code § 35-38-2-3(g) permits judges to sentence offenders

using any one of or any combination of the enumerated options. Prewitt v. State, 878

N.E.2d 184, 187 (Ind. 2007).

       The Indiana Supreme Court has held that a trial court’s sentencing decisions for

probation violations are reviewable using the abuse of discretion standard. Id. at 188.

The Court explained that “[o]nce a trial court has exercised its grace by ordering

probation rather than incarceration, the judge should have considerable leeway in

deciding how to proceed” and that “[i]f this discretion were not afforded to trial courts

and sentences were scrutinized too severely on appeal, trial judges might be less inclined


                                             4
to order probation to future defendants.” Id. An abuse of discretion occurs where the

decision is clearly against the logic and effect of the facts and circumstances. Id. (citation

omitted). As 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.” Goonen v. State, 705 N.E.2d

209, 212 (Ind. Ct. App. 1999).

       Here, the court heard evidence that West had recently been found guilty of four

felonies including two counts of child exploitation as class C felonies and two counts of

possession of child pornography as class D felonies. In ordering West to serve the

previously-suspended portion of his sentence in the Department of Correction, the court

noted that it expected West to receive a significant sentence on the new crimes, that it

therefore believed its “only option” was to order that he serve his remaining sentence,

and that this reasoning was “due to the nature and circumstances of the violations, which

involved two (2) Class C felony convictions and two (2) Class D felony convictions . . .

.” Transcript at 11. The court’s statements at sentencing merely reflected its view of the

severity of the violations involved and the practical implication of West’s situation. If

the court had continued West on probation the probation would not be served until the

completion of the potentially lengthy executed sentence in the Delaware County case.

Further, West’s convictions for child exploitation and child pornography while on

probation demonstrate that probation is not deterring his criminal activity. The court

accordingly concluded that West serving the previously-suspended portion of his

sentence was warranted.

                                              5
       Given the circumstances, we cannot say that the court abused its discretion in

ordering West to serve his entire previously-suspended sentence. See Wilkerson v. State,

918 N.E.2d 458, 464 (Ind. Ct. App. 2009) (holding that the court did not abuse its

discretion in ordering probationer to serve the balance of his previously-suspended

sentence in the Department of Correction); Milliner v. State, 890 N.E.2d 789, 793 (Ind.

Ct. App. 2008) (holding that the trial court did not abuse its discretion in reinstating the

probationer’s entire previously-suspended sentence), trans. denied.

       For the foregoing reasons, we affirm the trial court’s order that West serve his

entire previously-suspended sentence in the Department of Correction.

       Affirmed.

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




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