Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                       Jul 28 2014, 9:27 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:

DONALD E.C. LEICHT                                  GREGORY F. ZOELLER
Kokomo, Indiana                                     Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

URIAH M. LEVY,                                      )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )      No. 34A04-1402-CR-67
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable William C. Menges, Jr., Judge
                              Cause No. 34D01-1205-FC-451


                                           July 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
                                     CASE SUMMARY

          As part of a plea agreement, Appellant-Respondent Uriah Levy pled guilty to Class D

felony cocaine possession and Class A misdemeanor carrying a handgun without a license.

The trial court imposed a sentence of 548 days of incarceration for cocaine possession and

365 days for carrying a handgun without a license, credited Levy with ninety-four days

served, ordered that the sentences be served consecutively, suspended the balance, and placed

Levy on probation for 360 days. Ultimately, after the trial court found that Levy had violated

the terms of his probation for second time, it revoked his probation and imposed a sentence

of ten days fewer than the entire suspended portion. Levy contends that the trial court abused

its discretion in ordering that he serve all but ten days of his remaining suspended sentence

while leaving in place a period of probation to be served after release from incarceration. We

affirm.

                         FACTS AND PROCEDURAL HISTORY

          On September 26, 2012, Levy pled guilty to Class D felony cocaine possession and

Class A misdemeanor carrying a handgun without a license. That same day, the trial court

sentenced Levy to 548 days of incarceration for cocaine possession, credited him with ninety-

four days served, and suspended the balance. The trial court sentenced Levy to one year of

incarceration for carrying a handgun without a license and suspended the entire sentence.

The trial court ordered that the sentences for both counts be served consecutively and placed

Levy on probation for 360 days. In summary, Levy had 360 days remaining on his cocaine

possession sentence and 365 days on his carrying a handgun without a license sentence.


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       On April 4, 2013, the trial court found that Levy had violated the terms of his

probation, imposed 142 days of his previously-suspended sentence, and extended his

probation by 183 days. The trial court credited Levy with seventy-one actual days spent in

jail awaiting the disposition of Appellee-Petitioner the State of Indiana’s petition to revoke

suspended sentence, and for credit time of 142 days, to be applied against his carrying a

handgun without a license sentence. The trial court’s April 4, 2013, disposition left Levy

with 360 days remaining on his cocaine possession sentence and 223 remaining on his

carrying a handgun without a license sentence.

       On January 2, 2014, the trial court found that Levy had again violated the terms of his

probation. On January 23, 2014, the trial court found that Levy had served 102 actual days

awaiting the disposition of the State’s petition to revoke his suspended sentence, ordered him

to serve 360 days in the Department of Correction (“DOC”) for cocaine possession, ordered

him to serve 213 days (out of 223 remaining) in the Howard County Jail for carrying a

handgun without a license, and credited him with 204 days of credit time against his carrying

a handgun without a license sentence. The effect of the trial court’s January 23, 2014,

disposition was that Levy would serve nine additional days in the Howard County Jail for

carrying a handgun without a license and 360 in the DOC for cocaine possession, and that

only ten days of his original sentence had yet to be ordered executed. Additionally, Levy

would still serve 183 days on probation when released from incarceration.

                             DISCUSSION AND DECISION

       Probation is a “matter of grace” and a “conditional liberty that is a favor, not a right.”


                                               3
Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004) (quoting Cox v. State, 706 N.E.2d

547, 549 (Ind. 1999)). We review a trial court’s probation revocation for an abuse of

discretion. 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. Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). As long as the

proper procedures have been followed in conducting a probation revocation hearing, “the

trial court may order execution of a suspended sentence upon a finding of a violation by a

preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

       Levy seems to argue that the trial court left ten days of his sentence unexecuted so that

his 183-day probation would remain in effect, characterizing this as an abuse of discretion.

Levy’s argument, as we interpret it, presupposes that the trial court could not have left his

183-day probation in place had it ordered all of his suspended sentence to be executed. This,

however is not the case. Indiana Code subsection 35-38-2-3(h) provides that

       (h) 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.

(Emphasis added). Pursuant to the relevant statute, the trial court was within its authority to

order a portion of Levy’s sentence to be executed as well as leaving the previously-ordered

extended probationary period in effect, and Levy cites to no other authority suggesting an

                                               4
abuse of discretion was committed here. We conclude that the trial court did not abuse its

discretion in its disposition.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




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