MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                        Feb 23 2018, 9:00 am

regarded as precedent or cited before any                         CLERK
                                                              Indiana Supreme Court
court except for the purpose of establishing                     Court of Appeals
                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nakomi Tamasha Neal,                                     February 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1708-CR-1869
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Jeffrey L. Sanford, Judge
                                                         Trial Court Cause No.
                                                         71D03-1104-FD-285



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018   Page 1 of 6
[1]   Nakomi Tamasha Neal (“Neal”) appeals the revocation of his probation,

      contending that the trial court abused its discretion when it imposed his entire

      ten-year suspended sentence when it revoked his probation.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2011, pursuant to a negotiated plea agreement, Neal pleaded guilty to

      burglary as a Class B felony and criminal recklessness as amended to a Class A

      misdemeanor. Sentencing was left to the discretion of the trial court with the

      executed portion capped at eight years. On August 18, 2011, the trial court

      imposed a ten-year sentence for burglary and a one-year sentence for criminal

      recklessness to be served concurrently. The 10-year aggregate sentence was

      fully suspended to six years of probation with the first three years of the

      probationary term to be served on home detention and the option of early

      termination of home detention after eighteen months if Neal successfully

      complied with the terms and conditions of home detention and probation.


[4]   Neal was charged with a domestic battery that was committed on February 4,

      2012. He was discharged from home detention on July 24, 2012, but allowed to

      continue on probation. On July 17, 2013, a petition to revoke his probation

      was filed, alleging that Neal had committed three new criminal offenses:

      resisting law enforcement as a Class A misdemeanor; invasion of privacy as a

      Class A misdemeanor; and battery as a Class B misdemeanor. The victim in

      this battery case (for which Neal was eventually convicted) was the same victim

      Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018   Page 2 of 6
      as in the domestic battery case that led to Neal’s removal from home detention

      in July 2012. On October 1, 2013, Neal admitted to the probation violation,

      and the trial court, at a dispositional hearing held an November 13, 2013,

      ordered Neal incarcerated for 244 actual days as a sanction. The trial court also

      ordered: “When the Defendant is released from custody, Defendant continued

      on probation for five years from today.” Appellant’s App. Vol. II at 77. Neal was

      in custody from November 13, 2013 until July 14, 2014.


[5]   On August 15, 2016, the State filed a petition to revoke probation, alleging that

      Neal failed to complete court-ordered counseling, tested positive for alcohol

      and marijuana, and failed to pay his probation fees. The State added a first

      addendum to this petition on September 27, 2016, alleging that, on September

      22, 2016, Neal committed a Level 5 felony by carrying a handgun without a

      license and criminal recklessness as a Level 6 felony. In a second addendum

      filed on February 13, 2017, the State alleged that, on July 16, 2016, Neal

      committed domestic battery as a Class A misdemeanor.


[6]   Neal was convicted at a jury trial of the Level 5 felony carrying a handgun

      without a license charge.1 Neal stipulated that his new conviction constituted a

      violation of probation. On August 15, 2017, the trial court ordered Neal’s




      1
       Neal received an aggregate sentence of six years for the case in which he was convicted of this handgun
      charge. His appeal challenging the appropriateness of that sentence was recently affirmed by this court. See
      Neal v. State, No. 71A03-1708-CR-1814 (Ind. Ct. App. Jan. 31, 2018).




      Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018           Page 3 of 6
      original ten-year suspended sentence to be executed and served at the

      Department of Correction. Neal now appeals.


                                     Discussion and Decision
[7]   Neal contends that the trial court abused its discretion when it ordered him to

      serve his entire ten-year previously-suspended sentence. “‘Probation is a matter

      of grace left to trial court discretion, not a right to which a criminal defendant is

      entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014) (quoting

      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.; see also Ind. Code § 35-38-2-3(a). “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, 878

      N.E.2d at 188. “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. Accordingly, we review a trial

      court’s probation violation determination 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.” Jackson, 6 N.E.3d at 1042.


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

      a factual determination that a violation of a condition of probation actually

      occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).


      Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018   Page 4 of 6
       “Second, if a violation is found, then the trial court must determine the

       appropriate sanctions for the violation.” 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; or (3) order all or part of a previously-suspended

       sentence to be executed. Ind. Code § 35-38-2-3(g).


[9]    Neal repeatedly violated the terms of his probation by committing multiple new

       criminal offenses. The trial court had already shown leniency by not imposing

       his suspended sentence in his prior revocation proceedings. His home-

       detention, served as a condition of probation, was revoked less than a year after

       it began because he was convicted of domestic battery. Another petition to

       revoke his probation, based on another conviction for battery against the same

       victim, was granted. Finally, the revocation at issue was the result of a felony

       conviction for carrying a handgun without a license. Neal’s behavior on

       probation shows him committing new violent crimes and being feloniously in

       possession of a handgun. The trial court’s decision was not clearly against the

       logic and effect of the facts and circumstances before it, and the trial court did

       not abuse its discretion in revoking Neal’s probation.


[10]   As a result of his latest conviction which constituted the probation violation at

       issue here, Neal was sentenced to a total of six years executed in the

       Department of Correction, a maximum sentence for that conviction. Neal

       admitted that the new crime for which he was convicted constituted a violation

       of his probation. Without citation to legal precedent, Neal argues that the trial

       Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018   Page 5 of 6
       court abused its discretion by imposing the entire ten-year suspended sentence

       in light of the fact that he received the maximum sentence for the underlying

       offense which constituted his probation violation. Committing the present

       offense in addition to his other offenses shows Neal’s a lack of reform. The trial

       court did not abuse its discretion when it ordered Neal to execute his

       previously-suspended sentence in its entirety.


[11]   Affirmed.


[12]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1708-CR-1869 | February 23, 2018   Page 6 of 6
