MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Aug 24 2015, 10:06 am
regarded as precedent or cited before any
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
Christopher L. Clerc                                     Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Olson,                                         August 24, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1504-CR-155
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Heimann, Judge
                                                         Trial Court Cause No.
                                                         03C01-1010-FD-2276



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015     Page 1 of 7
                                       Statement of the Case
[1]   Robert A. Olson (“Olson”) appeals the trial court’s order revoking his probation

      and ordering him to serve his previously suspended eighteen-month sentence in

      the Department of Correction. While on probation from a Class D felony

      operating a vehicle while intoxicated (“OVWI”) conviction, Olson committed

      another OVWI offense and then fled to Florida, where he committed yet

      another OVWI offense. After the State extradited him back to Indiana, Olson

      pled guilty to and was convicted of the Indiana OVWI offense, and he admitted

      to violating probation. The trial court revoked Olson’s probation and ordered

      him to serve his previously suspended sentence. Olson now appeals the trial

      court’s imposition of his entire suspended sentence. Concluding that the trial

      court did not abuse its discretion by ordering Olson—who had five OVWI

      convictions—to serve his previously suspended sentence, we affirm the trial

      court’s revocation of Olson’s probation.


[2]   Affirmed.


                                                     Issue
              Whether the trial court abused its discretion by ordering Olson to
              serve his previously suspended sentence.

                                                     Facts
[3]   In March 2010, the State charged Olson with Class D felony OVWI. After

      Olson failed to appear for his initial hearing, the trial court issued an arrest

      warrant. In July 2010, Olson appeared for his initial hearing and was then


      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015   Page 2 of 7
      released by the trial court. Thereafter, Olson failed to appear at a scheduled

      status hearing and pretrial hearing. The trial court again issued a warrant for

      Olson’s arrest. In September 2010, the State served the warrant on Olson and

      transported him from the Jennings County Jail.


[4]   In February 2010, Olson pled guilty to the Class D felony OVWI as charged.

      In March 2011, the trial court imposed a sentence of eighteen (18) months,

      which was suspended to probation. The trial court also ordered Olson to serve

      four (4) days in jail and placed him in Bartholomew County Community

      Corrections for six (6) months. As part of Olson’s probation, he was to

      complete thirty-two (32) hours of community service, participate in a substance

      abuse program, refrain from consuming alcohol, and pay restitution and

      extradition fees.


[5]   Five months later, in August 2011, the State filed a notice of probation

      violation, alleging that Olson had violated his probation by: (1) consuming

      alcohol; (2) committing a new Class D felony OVWI offense in Bartholomew

      County (“2011 OVWI case”) and failing to report it to the probation

      department;1 (3) failing to complete recommended services; (4) failing to

      complete required community service hours; and (5) being behind in paying his

      fees. Upon learning of the revocation petition, Olson fled to Florida. When




      1
          This offense was filed under cause number 03C01-1108-FD-4604.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015   Page 3 of 7
      Olson failed to appear at his September 2011 initial probation revocation

      hearing, the trial court issued a warrant for his arrest.


[6]   Three years later, in October 2014, the State located Olson after he was arrested

      in Florida for yet another OVWI offense (“2014 Florida OVWI”).2 The State

      then extradited him back to Indiana to appear for his revocation hearing and his

      2011 OVWI case.


[7]   In a joint hearing held on February 2, 2015, Olson pled guilty to the lesser

      included offense of Class C misdemeanor in his 2011 OVWI case, and he

      admitted to violating probation in this current case on appeal. 3 The trial court

      determined that Olson “violate[d] the terms of his probation by consuming

      alcohol in August 2011; committing Operating a Vehicle while Intoxicated, a

      Class C Misdemeanor on August 20, 2011 and not completing the

      recommended community service hours.” (App. 7).


[8]   On March 26, 2015, the trial court held another joint hearing on the probation

      revocation and the 2011 OVWI case. During this hearing, the trial court

      revoked Olson’s probation and ordered him to serve the balance of his

      previously suspended eighteen month sentence in the Department of

      Correction. When doing so, the trial court explained its reasoning as follows:




      2
          According to Olson, he was convicted of the OVWI offense in Florida and given one year of probation.
      3
        Olson did not request the trial court reporter to transcribe this February 2015 hearing; thus, the transcript of
      this hearing is not before us as part of the record on appeal. As a result, any facts regarding this hearing will
      come from the chronological case summary (“CCS”).

      Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015                  Page 4 of 7
       “[W]e’ve had to extradite you twice on these cases. You absconded

       immediately after violating your probation . . . [Y]ou’ve had five DUIs and

       have had two since you have been on probation in this case.” (Tr. 32). For

       Olson’s 2011 OVWI case, the trial court suspended his license and sentenced

       him to sixty days with credit for time served. Olson now appeals from his

       probation revocation case.


                                                   Decision
[9]    Olson argues that the trial court erred by ordering him to serve his previously

       suspended sentence.


[10]   Upon determining that a probationer has violated a condition of probation, the

       trial court may “[o]rder execution of all or part of the sentence that was

       suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).

       “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.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “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 to future

       defendants.” Id. As a result, we review a trial court’s sentencing decision from

       a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825

       N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion

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

       circumstances. Id.


       Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015   Page 5 of 7
[11]   Citing to Anglemyer v. State, 875 N.E.2d 482 (Ind. 2007), Olson suggests that the

       trial court should have given “mitigating weight” to his admission that he

       violated the terms of his probation. (Olson’s Br. 4). “Anglemyer, however,

       applies to the imposition of an initial sentence—not a sentence imposed

       following the revocation of probation.” Berry v. State, 904 N.E.2d 365, 366

       (Ind. Ct. App. 2009). Instead, here, the trial court ordered Olson to serve the

       suspended balance of his already imposed sentence, which he cannot

       collaterally attack. See id. (citing Stephens v. State, 818 N.E.2d 936, 939 (Ind.

       2004) (observing that a defendant cannot collaterally attack a sentence on

       appeal from a probation revocation)).4


[12]   The record reveals that the trial court had ample basis for its decision to order

       Olson to serve his previously suspended sentence in the Department of

       Correction. Here, Olson’s violation of his probation was based, in part, on his

       consumption of alcohol and the commission of the 2011 OVWI case in

       Indiana, which is the same type of offense as the one for which he was placed

       on probation. Indeed, during the final revocation hearing, the trial court

       specifically told Olson its reasoning for ordering him to serve his suspended

       sentence, which included the fact that Olson had five OVWI convictions and




       4
         We also reject Olson’s reliance on Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), as the facts of that
       case are distinguishable from this case. In Puckett, we held that a special judge in the defendant’s probation
       revocation hearing had “consider[ed] multiple improper factors” such as whether the original plea accepted
       by the original trial judge was too lenient. Puckett, 956 N.E.2d at 1189. Here, however, we have no such
       circumstances.



       Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015                 Page 6 of 7
       had absconded to Florida after violating probation and avoided the revocation

       allegations for three years.


[13]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Olson to serve his previously suspended sentence. For

       the foregoing reasons, we affirm the trial court’s revocation of Olson’s

       probation.


[14]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1504-CR-155 | August 24, 2015   Page 7 of 7
