Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                   Nov 26 2014, 9:24 am
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:

GILDA W. CAVINESS                               GREGORY F. ZOELLER
Caviness Law Office, LLC                        Attorney General of Indiana
Rushville, Indiana
                                                JESSE R. DRUM
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JORDAN RIVERA,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 73A01-1404-CR-156
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE SHELBY CIRCUIT COURT
                        The Honorable Charles D. O’Connor, Judge
                              Cause No. 73C01-0402-FA-1


                                    November 26, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
                                STATEMENT OF THE CASE

      Jordan Rivera appeals the sentence the trial court imposed after Rivera admitted to

violating the terms of his probation. We affirm.

                                         ISSUE

      Rivera raises one issue, which we restate as: whether the trial court abused its

discretion in sentencing him.

                       FACTS AND PROCEDURAL HISTORY

      In the early morning hours of December 4, 2003, fourteen-year-old Rivera went to

a hotel in Shelbyville. He ordered the desk clerk to give him money and then forced her

into a laundry room, where he raped her and forced her to engage in deviate sexual

conduct. Next, Rivera ripped a lock of hair from her head, forced her inside a large

clothes dryer, closed the door, turned it on, and stood there watching as she screamed in

pain. He only left the premises when another employee arrived for work.

      The State alleged that Rivera had committed acts that, if they had been committed

by an adult, would constitute burglary resulting in bodily injury, robbery resulting in

serious bodily injury, rape, and criminal deviate conduct, all Class A felonies. The State

also claimed that he had committed acts that, if they had been committed by an adult,

would constitute criminal confinement as a Class B felony and theft as a Class D felony.

A juvenile court waived jurisdiction over Rivera.

      Rivera and the State executed a plea agreement. Rivera agreed to plead guilty to

rape as a Class A felony and robbery as a Class C felony. The State agreed to dismiss the

remaining charges. The parties further agreed to a maximum aggregate sentence of thirty

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years, with twenty years executed followed by ten years suspended, to be served on

probation. Rivera further agreed that he would comply with “all Special Sex Offender

Terms of Probation and participate in and successfully complete the Court’s Sex

Offender Management Program.” Appellant’s App. p. 92.

       At a March 10, 2005 hearing, the trial court accepted the plea agreement and

sentenced Rivera to thirty years, with twenty years executed followed by ten years

suspended to probation. In addition, the court ordered him to comply with standard terms

of probation and to also comply with special probation conditions for adult sex offenders.

       The standard terms of probation included following all rules of the program and

paying all fees. The standard conditions also required Rivera to avoid using drugs, to

refrain from committing another criminal offense, and to submit to drug and alcohol

screens as directed by probation staff.

       The special probation conditions for adult sex offenders, which Rivera reviewed

and initialed, included a requirement to “report to your probation officer as directed.” Id.

at 101. The conditions also barred him from consuming “any controlled substance.” Id.

at 100. Finally, he was required to submit to “intensive supervision” by his probation

officer, including completion of a travel log as requested. Id. at 101.

       During Rivera’s incarceration at the Indiana Department of Correction, he violated

prison rules by possessing controlled substances, possessing intoxicants, and committing

battery. In January 2012, Rivera was paroled to serve his term of probation. He was

placed on electronic monitoring as part of the sex offender management program.



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       On December 6, 2012, the State filed a petition to revoke his probation, alleging

that he failed to attend two scheduled appointments with probation personnel. The trial

court held a hearing, at which Rivera admitted to violating the terms of probation. The

court ordered him to serve ten days of his previously-suspended sentence.

       On January 24, 2013, the State filed a second petition to revoke Rivera’s

probation, alleging that he again failed to attend a scheduled appointment with probation

personnel. The trial court held a hearing, at which Rivera again admitted to violating the

terms of probation. The court ordered him to serve ninety days of his previously-

suspended sentence.

       Rivera served his ninety-day sentence and was released to continue on probation

and sex offender monitoring. On July 22, 2013, the State began this case by filing a third

petition to revoke Rivera’s probation, alleging that he had violated the terms of probation

by testing positive for methamphetamine.

       Next, the State amended the petition to revoke, alleging that he had also traveled

to unapproved locations in violation of the rules of the sex offender management

program. Electronic monitoring revealed that he had driven to several locations, other

than his home and his place of work, without first notifying probation officers.

       Later, the State again amended the July 22, 2013 petition, alleging that Rivera had

tested positive for methamphetamine a second time and had also tested positive for

ecstasy, in violation of both the terms of probation and the rules of the sex offender

management program. A report attached to the second amended petition indicated that

Rivera had appeared at a sex offender management meeting in a disoriented state,

                                             4
claiming that a murder had occurred at his apartment building.         Officers found no

evidence of a murder, and after he submitted to a drug screen they found

methamphetamine and ecstasy in his system.

       During a January 16, 2014 hearing, Rivera admitted that he had violated the terms

of probation and the rules of the sex offender management program as alleged by the

State. He specifically admitted that he had consumed methamphetamine and ecstasy and

that he had driven to unauthorized locations.

       The trial court held a dispositional hearing on March 13, 2014. After hearing

evidence and argument, the court sentenced Rivera to serve seven years of his previously

suspended sentence, minus credit for time served. The court further ordered that Rivera

would resume probation and sex offender monitoring upon his release from incarceration.

This appeal followed.

                            DISCUSSION AND DECISION

       Rivera claims that the seven-year sentence is an abuse of discretion because he

admitted to the violations, acknowledged his substance abuse problems, and requested

treatment.

       A defendant is not entitled to serve a sentence in a probation program; rather, such

placement is a matter of grace. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App.

2011), trans. denied. If a trial court determines that a probationer has violated a term of

probation, the court may impose one or more of the following sanctions:

       (1)    Continue the person on probation, with or without modifying or
              enlarging the conditions.


                                            5
       (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(h) (2012). Subject to these statutory guidelines, a trial court’s

sentencing decision for a probation violation is reviewable using the abuse of discretion

standard. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013), trans. denied.

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

the facts and circumstances. Id.

       Here, the record reflects that Rivera received a substantial opportunity in being

permitted to serve one-third of his sentence on probation, instead of facing a longer

executed sentence for his brutal crimes. Instead of taking advantage of the opportunity to

reform, Rivera repeatedly violated the terms of probation and the rules of the sex

offender management program. For his first violation, missing scheduled probation

appointments, the court imposed a relatively restrained sentence of ten days. For the

second violation, missing another scheduled probation appointment, the court imposed a

longer sentence of ninety days. Probation officials and the trial court hoped the ninety-

day sentence would induce Rivera to comply with the rules. Tr. pp. 13, 35.

       Rivera continued to ignore opportunities for him to correct his behavior that were

extended by the court. Instead, his violations became more severe, escalating from

missing probation appointments to using controlled substances and violating the terms of

the sex offender management program by going places without prior authorization.

Rivera’s probation officer considered Rivera’s unauthorized movements to be a “major

                                            6
violation” because it is important to track a sex offender’s location. Id. at 17. In

addition, use of controlled substances is a criminal offense in addition to a violation of

the terms of probation and the rules of the sex offender management program.

      Rivera’s probation officer stated that because Rivera had failed to benefit from

substance abuse classes and sex offender management and supervision, she had no other

services to offer him to encourage his rehabilitation. She concluded that he was unlikely

to be successful in further probation and presented a danger to the community.

      Rivera has demonstrated an unwillingness to comply with the terms of probation

and the sex offender management program. Even with this extensive evidence, the court

declined the State’s request to impose the full suspended sentence upon Rivera, ordering

him to serve seven rather than ten years. Under these circumstances, we cannot conclude

that imposing a seven-year sentence amounts to an abuse of the sentencing discretion

granted to the trial court. See Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App.

2009) (no abuse of discretion in imposing entire previously-suspended sentence where

probationer was found to have possessed a controlled substance).

                                    CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

      NAJAM, J., and CRONE, J., concur.




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