Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                               Oct 01 2013, 5:28 am
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:

CARA SCHAEFER WIENEKE                             GREGORY F. ZOELLER
Special Assistant to the State Public Defender    Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                               RYAN D. JOHANNINGSMEIER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WARREN E. LARGE,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 84A01-1303-CR-133
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
                             Cause No. 84D03-1008-FC-2873




                                       October 1, 2013



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issue

       Warren Large pleaded guilty in 2011 to one count of Class C felony child

molesting and was sentenced to four years, three executed and one suspended to

probation. In 2013, he was found to have violated his probation and was ordered to serve

the entirety of his previously-suspended sentence. Large now appeals, raising the sole

issue of whether the trial court abused its discretion in sentencing Large for the probation

violation. Concluding the trial court did not abuse its discretion, we affirm.

                                Facts and Procedural History

       Large was accused in 2010 of child molesting with respect to a six-year-old child

related to his wife. He pleaded guilty to child molesting as a Class C felony, and

pursuant to the terms of the plea, was sentenced to the Department of Correction for four

years, with three years to be executed and one year to be suspended to formal probation,

the conditions of which included that he report to the probation office on or before the

first day of each month and have no contact with children under the age of sixteen.

       Large was released to probation in early 2012. On January 29, 2013, a notice of

probation violation was filed alleging that Large had failed to report to the probation

office as ordered in December and had contact with a child under sixteen years of age.

Large was arrested on January 31, 2013, and held in jail until the fact-finding hearing on

February 28, 2013. Prior to the start of the hearing, counsel conferred with the trial court,

after which the trial court stated:

       My understanding is that instead of having a probation violation hearing
       today Mr. Large, you’re gonna admit that you violated the terms of your
       probation; . . . you’re gonna be sentenced to time served on this [probation
       violation]; your probation will be enlarged for one (1) year, extended for
       one (1) year; . . . [t]hat you’re gonna abide by all of the additional terms of
                                             2
       probation that are contained in the Indiana Recommended Special
       Probation Conditions for Adult Sex Offenders . . . .

Transcript at 4-5. Large concurred that was the agreement that had been reached. The

trial court then asked Large the following questions:

       Court:         . . . So Mr. Large, do you admit or deny that you violated the
                      terms of your probation?
       Large:         I admit, I did.
       Court:         And specifically the allegation was that you had failed to
                      report, and that you had unsupervised contact with someone
                      under sixteen (16).
       Large:         No.
       Court:         You did not?
       Large:         I did not your Honor, under sixteen (16). I violated my
                      probation, only had one (1) month to go, but I have not seen
                      anyone under sixteen (16) . . . .

Id. at 5-6. The trial court then instructed the State to call its first witness.

       Anthony Heber, Large’s probation officer, testified that Large failed to report in

December 2012 and January 2013, and that he had not contacted the probation office

between the date of his last missed appointment and his arrest. Edith Wentz, manager at

a motel where Large had been staying prior to his arrest, testified that she witnessed an

incident in the motel’s reception area where Large spoke to the son of the motel’s

maintenance man, whom she knew to be only fifteen years old. Large asked the boy if he

still lived down the road, and Wentz told Large not to talk to the boy and to leave the

area. At the conclusion of the testimony, the trial court stated:

       . . . I’m gonna find that Mr. Large violated the terms of his probation. I
       think it’s, may be a closer call on the, whether or not it’s an unsupervised
       contact with an under sixteen (16) year old, but he clearly violated by not
       contacting and communicating with his probation officer for two (2)
       consecutive months. I’m finding that he’s violated the terms of his
       probation. I’ll just find it on that issue solely, to make the record clear.


                                                3
Id. at 14. The State recommended revocation of Large’s probation and execution of the

entirety of his previously-suspended sentence. Large’s counsel requested that he be

returned to probation: “He only missed two (2) [appointments]. Had we not had the

accusations of contact with a child under the age of sixteen (16), I don’t think we would

have been here, and Mr. Large would be restored to probation after time served in jail.”

Id. at 15. The trial court ordered Large to serve the balance of his one-year suspended

sentence, with credit for time served since his arrest on the probation violation. Large

now appeals this sentence.

                                 Discussion and Decision

                                  I. Standard of Review

       “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). Once

a trial court has exercised its grace by ordering probation, it has considerable leeway in

deciding how to proceed. Id. “If this discretion were not afforded to trial courts and

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

order probation to future defendants.” Id. We therefore review a trial court’s sentencing

decision in a probation revocation proceeding for an abuse of discretion. Alford v. State,

965 N.E.2d 133, 134 (Ind. Ct. App. 2012), trans. denied. “An abuse of discretion occurs

where the decision is clearly against the logic and effect of the facts and circumstances.”

Id. If a defendant is found to have violated his or her probation, a trial court may (1)

continue the defendant on probation; (2) extend the probationary period for not more than

one year beyond the original period; and/or (3) order all or part of a previously suspended

sentence to be executed. Ind. Code § 35-38-2-3(h).
                                             4
                                  II. Sanction for Probation Violation

        Large does not challenge the trial court’s decision to revoke his probation; he

challenges only the sentence the trial court imposed. His argument is essentially that he

received a more severe sentence for putting the State to its proof. When all parties

thought Large was going to admit to the two alleged violations, the recommended

sanction was an extended probationary period; when Large would not admit he had

violated the no-contact condition of his probation and there was instead an evidentiary

hearing, at the conclusion of which the trial court found specifically a violation only for

failure to report, he received a stiffer sanction. Large argues this was an abuse of the trial

court’s discretion.

        The trial court specifically found that Large had violated only the reporting

condition of his probation,1 but the evidence also supports a finding that Large had

contact with a person under the age of sixteen. The trial court alluded to that, but called it

a “closer call” as to whether it was an “unsupervised contact.”                               Tr. at 14.       The

probationary condition at issue, however, was that Large would have “NO CONTACT

with children under the age of 16 years,” unsupervised or otherwise.                                 Appellant’s

Appendix at 33. Large offered no explanation for his failure to report to his probation

officer. In fact, he stated that he knew he only had one month to go and he was “not quite

sure why [he] didn’t report to probation.” Tr. at 16. Large was not “penalized for

refusing to tell what he believed was a lie under oath.” Brief of the Appellant at 5. The


        1
             Large and the State disagree about whether Large admitted to violating this condition of his probation.
He generally admitted to violating the terms of his probation, but then backtracked only on the no-contact provision
when the trial court specified the allegations to which he was admitting. We still consider his original statement an
admission that he violated the reporting condition. Regardless, the State presented evidence supporting both
allegations.
                                                         5
trial court heard the State’s evidence and Large’s explanation or lack thereof for his

actions, and determined that serving his previously-suspended sentence was the

appropriate sanction for his conduct. We decline to find the trial court’s decision to

require Large to serve his one-year suspended sentence to be an abuse of discretion.

                                       Conclusion

       The trial court did not abuse its discretion by ordering that Large serve his

previously-suspended sentence for violating the terms of his probation. The judgment of

the trial court is affirmed.

       Affirmed.

RILEY, J., and KIRSCH, J., concur.




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