MEMORANDUM DECISION                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                               Mar 16 2017, 9:52 am

this Memorandum Decision shall not be                                     CLERK
                                                                      Indiana Supreme Court
regarded as precedent or cited before any                                Court of Appeals
                                                                           and Tax Court
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                                   Curtis T. Hill, Jr.
Columbus, Indiana                                      Attorney General of Indiana
                                                       Eric P. Babbs
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clay P. Manvilla,                                      March 16, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       03A04-1610-CR-2445
        v.                                             Appeal from the Bartholomew
                                                       Circuit Court
State of Indiana,                                      The Honorable William E. Vance,
Appellee-Plaintiff                                     Senior Judge
                                                       Trial Court Cause No.
                                                       03C01-1311-FD-5873



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017         Page 1 of 9
                                      Statement of the Case
[1]   Clay P. Manvilla appeals the trial court’s revocation of his probation, following

      a revocation hearing at which Manvilla admitted to violating the terms of his

      probation. He raises one issue on appeal, namely, whether the trial court

      abused its discretion when it ordered him to serve the balance of his previously

      suspended sentence. We affirm.


                                 Facts and Procedural History
[2]   On November 1, 2013, the State charged Manvilla with Count I, theft, as a

      Class D felony, and Count II, criminal mischief, as a Class B misdemeanor.

      According to the probable cause affidavit, Manvilla and two other individuals

      used a bolt cutter to remove the lock from a work trailer. When the trailer’s

      owner found Manvilla and the other individuals standing next to the trailer,

      several power tools had been removed from the trailer, and Manvilla and the

      others fled on foot. The victim immediately called the police, who

      subsequently arrested Manvilla. Manvilla pleaded guilty to theft as charged in

      Count I, and the State ultimately dismissed Count II. The pre-sentence

      investigation report showed that Manvilla had a lengthy juvenile history,

      including two adjudications for theft, two adjudications for resisting law

      enforcement, and an adjudication for criminal mischief.


[3]   On May 15, 2014, the trial court sentenced Manvilla to thirty days at the

      Bartholomew County Jail with credit for ten days served and two years in the

      Indiana Department of Correction, fully suspended to probation, with the


      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 2 of 9
      condition that Manvilla “comply with the specific programs recommended by

      Community Corrections, which may include work release/residential

      placement, day reporting, electronic monitoring, counseling or education

      programs.” Appellant’s App. at 54-55.


[4]   On August 25, 2014, a probation officer filed a petition to revoke Manvilla’s

      probation due to his failure to pay day reporting fees and drug screen fees. In

      response, the trial court conducted a series of status hearings regarding

      Manvilla’s employment and payment of fees, and the court ordered Manvilla to

      take certain steps and make certain payments. On April 8, 2015, Manvilla

      obtained a high school diploma, and, on April 22, Manvilla received a

      completion certificate from the Bartholomew County Court Services’ Prime for

      Life Program.


[5]   On March 1, 2016, the State filed another petition to revoke Manvilla’s

      probation due to his arrest for illegal consumption on February 21, 2016, and

      his failure to report that arrest to his probation officer. At a hearing on May 9,

      Manvilla admitted to violating the terms of his probation as alleged. As a

      result, the trial court extended Manvilla’s probation “through the end of

      November, 2016” and ordered that Manvilla “be placed in work release for

      thirty (30) actual days.” Id. at 27.


[6]   While Manvilla was at the work release center, he was aware of the procedure

      by which persons with cigarettes were allowed to take smoke breaks outside

      while in a confined area. He also knew that he was required to comply with the


      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 3 of 9
      rules and regulations of the work release center. One day while at the work

      release center, Manvilla attempted to go out to the smoking area and was

      stopped by Residential Officer Brad Southers. Southers indicated to Manvilla

      that Manvilla should not proceed into the smoking area because Manvilla did

      not have any cigarettes. Manvilla ignored Southers, proceeded forward, and

      made physical contact with Southers.


[7]   On June 6, 2016, the State filed a third petition to revoke Manvilla’s probation

      in which it noted that the work release program had discharged Manvilla as

      unsuccessful on May 25 and that he was in arrears on payment of his fees. On

      September 12, the State amended the petition to revoke, specifically alleging

      that “[Manvilla] initiated inappropriate physical contact with Residential

      Officer Brad Southers.” Id. at 17-18. On September 26, the trial court

      conducted a revocation hearing at which Manvilla admitted to, and the trial

      court found, that Manvilla “did violate the terms of his probation by having

      inappropriate physical contact with Residential Officer Brad Southers and by

      failure to pay fees as ordered.” Id. at 13. Rob Gaskill, the Director of

      Residential Services for Bartholomew County Court Services, which runs the

      work release facility at which Manvilla was located, recommended that

      Manvilla be incarcerated for the balance of his sentence.


[8]   The trial court proceeded to disposition and allowed Manvilla an opportunity

      to speak. Manvilla acknowledged that as a juvenile he had been offered

      rehabilitative programming and treatment on numerous occasions and that, as a

      juvenile, he had been found in violation of his probation numerous times.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 4 of 9
       When asked to explain why he made physical contact with Southers, Manvilla

       stated the following:


               I honestly I . . . I didn’t mean to. I was . . . trying to get to be
               able [sic] to smoke a cigarette. Somebody told me they would
               give me one if I got out there. I’ve seen it done a few times. I
               honestly didn’t know it would have been taken this far and I was
               given seven days [of] smoke restriction and I was doing that and
               then I got put in jail. I didn’t mean to. I wasn’t trying to
               physically move him or nothing. I was just trying to get out and
               smoke a cigarette.


       Tr. at 13.


[9]    In reaching its sanctioning decision, the trial court stated as follows:

               Well [. . .] at first [b]lush, it does sound like we’re talking about a
               relatively minor incident. But, don’t forget [. . .] the defendant
               has had eight prior . . . difficulties with the law. He’s had
               difficulties complying with the rules and inappropriate contact
               with corrections officers [which] is something I think is really
               important. I don’t think that that alone can be . . . I think that is
               enough to remove him from the minor problem category. I think
               the Sentencing Order in this case reflects that the Court
               determined that there were no mitigating circumstances. That
               the defendant’s prior criminal history is such that an aggravated
               sentence was appropriate.


       Id. at 15.


[10]   The trial court revoked Manvilla’s probation and ordered him to serve the

       balance of his two-year sentence in the Department of Correction. This appeal

       ensued.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 5 of 9
                                     Discussion and Decision
[11]   Manvilla argues that the trial court abused its discretion when, after revoking

       his probation, it ordered him to serve his entire previously suspended sentence.

       “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); see also Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied.

       We review probation violation determinations and sanctions 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.” Id.

       (citations omitted).


[12]   A probation revocation proceeding is a two-step process. Id. First, the trial

       court must determine whether the preponderance of the evidence showed that a

       probation violation occurred. Id.; see also Ind. Code § 35-38-2-3 (2016).


               When a probationer admits to violations of the terms of his
               probation, the procedural safeguards of [I.C. § 35-38-2-3] are
               unnecessary. Instead, the court can proceed to the second step of
               the inquiry and determine whether the violation warrants
               revocation. However, even a probationer who admits the
               allegations against him must still be given an opportunity to offer
               mitigating evidence suggesting that the violation does not
               warrant revocation.


       Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (citations omitted). Here,

       Manvilla admitted that he violated the terms of his probation.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 6 of 9
[13]   In the second step of the process, the trial court must determine whether the

       probation violation warrants revocation of probation or some lesser sanction.

       Heaton, 984 N.E.2d at 616. Indiana Code Section 35-38-2-3(h) provides:


               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke
               is filed within the probationary 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.


       Our supreme court has held that this statute “permits judges to sentence

       offenders using any one of or any combination of the enumerated powers.”

       Prewitt, 878 N.E.2d at 187. A single violation of a condition of probation is

       sufficient to permit the trial court to revoke probation. Treece, 10 N.E.3d at 59.


[14]   Here, Manvilla does not dispute that the trial court had authority to sanction

       him pursuant to Indiana Code Section 35-38-2-3(h), given that he admitted to

       the probation violation. Rather, Manvilla maintains that the trial court abused

       its discretion by failing to take his admission to the violation, his efforts to

       rehabilitate himself, and the minor nature of the probation violation into

       account as mitigating factors when determining the appropriate sanction for his

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 7 of 9
       probation violation. In support, he relies on Anglemyer v. State, 868 N.E.2d 482

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007), and Puckett v. State,

       956 N.E.2d 1182 (Ind. Ct. App. 2011). However, neither case is applicable to

       the instant case. Anglemyer related to the requirements on a trial court when it

       imposes a sentence, not when it imposes sanctions for a probation violation.

       And Puckett held that it was improper for a trial court to consider, at a probation

       revocation hearing, whether the original plea was too lenient. 956 N.E.2d at

       1187. Here, the trial court did not question the propriety of the original

       sentence; instead, it followed the terms of the original plea agreement.


[15]   Moreover, Puckett does not stand for the proposition that a trial court must

       consider mitigating factors when imposing a sanction in a probation revocation

       proceeding, as Manvilla seems to contend. In fact, the opposite is true. We

       have held that, while probationers must be given the opportunity to present

       mitigating factors, Woods, 892 N.E.2d at 640, “trial courts are not required to

       balance aggravating or mitigating circumstances when imposing [a] sentence in

       a probation revocation proceeding,” Treece, 10 N.E.3d at 59 (quotation

       omitted). This stems from the fact that a probation revocation hearing does not

       involve the imposition of a sentence, but is a proceeding to consider the

       execution of a sentence already imposed. See Mitchell v. State, 619 N.E.2d 961,

       963-64 (Ind. Ct. App. 1993), overruled on other grounds by Patterson v. State, 659

       N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995). So long as the proper procedures

       have been followed in conducting a probation revocation, a trial court has

       discretion to order execution of a suspended sentence upon a finding of a

       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 8 of 9
       violation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

       Therefore, the trial court did not abuse its discretion when it refused to give

       weight to the mitigating factors Manvilla raised.


[16]   The logic and effect of the facts and circumstances in this case support the trial

       court’s sanction for Manvilla’s admitted probation violation. Manvilla had a

       criminal history and a pattern of probation violations stemming back to his

       juvenile history. And, although Manvilla admitted that he violated the terms of

       his probation, he did not express remorse or otherwise take responsibility for

       the incident involving Officer Southers. Moreover, the Director of the work

       release program in which Manvilla had been placed recommended that

       Manvilla be incarcerated for the balance of his sentence. The trial court was

       well within its discretion to order Manvilla to serve his entire previously

       suspended sentence. See Prewitt, 878 N.E.2d at 188 (holding trial court did not

       abuse its discretion in ordering defendant to serve previously suspended

       sentence when he had multiple probation violations, a past criminal history,

       and an inability to comply with ordered programs).


[17]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1610-CR-2445 | March 16, 2017   Page 9 of 9
