                                                                FILED
 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of                          Feb 07 2013, 8:51 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                        CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

JUNE E. BULES                                        GREGORY F. ZOELLER
Plymouth, Indiana                                    Attorney General of Indiana

                                                     KELLY A. MIKLOS
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ANTHONY PAUL BANKS,                                  )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 50A05-1207-CR-343
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE MARSHALL SUPERIOR COURT
                           The Honorable Robert O. Bowen, Judge
                               Cause No. 50D01-0612-FB-49


                                          February 7, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                       Case Summary

        Anthony Paul Banks appeals the revocation of his probation and the trial court’s

order that he serve his entire previously suspended four-year sentence in the Indiana

Department of Correction. Banks argues that the trial court should have imposed less

than the entire previously suspended sentence and continued his probation. Finding no

error by the trial court, we affirm.

                               Facts and Procedural History

        In 2008, Banks pled guilty to Class B felony burglary and was sentenced to eight

years in the DOC, with four years suspended to probation. He was released from the

DOC in October 2011.

       The terms of Banks’ probation prohibited him from purchasing, possessing, or

consuming intoxicating beverages or illegal substances. See Appellant’s App. p. 15.

Banks was also required to submit to random drug screens. In March 2012, the State

filed a petition to revoke Banks’ probation, alleging that Banks had violated his probation

by testing positive for amphetamine and methamphetamine at one drug screen and

cocaine metabolites at another. At a hearing on the State’s petition, the trial court

received evidence of Banks’ failed drug screens. Banks told the trial court he “fell to

[his] weaknesses and made a couple [of] mistakes” and asked for mercy. Tr. p. 43.

However, Banks also admitted that he had an extensive criminal history. His criminal

history includes multiple juvenile adjudications, many of which would have been felonies

if committed by an adult. See State’s Ex. 9. And as an adult, Banks has eighteen felony

convictions, including convictions for theft, burglary, operating a motor vehicle while


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intoxicated, operating a motor vehicle after being adjudged a habitual traffic offender,

possession of marijuana, carrying a handgun without a license, pointing a handgun,

criminal mischief, and a number of habitual-offender enhancements. Id.

       The State asked the trial court to impose the entire previously suspended sentence

of four years, saying “probation isn’t having any effect on [Banks].”            Tr. p. 50.

Nonetheless, Banks asked the court to impose less than the entire previously suspended

sentence. The court rejected Banks’ request, telling Banks he had received a “fairly

lenient sentence” on the underlying burglary conviction despite his criminal history and

stated, “It’s obvious that probation has not worked in your situation.” Id. at 54. The

court ordered Banks to serve his entire previously suspended four-year sentence in the

DOC. Banks now appeals.

                                 Discussion and Decision

       Banks argues that the trial court should have ordered him to serve less than his

entire previously suspended sentence and continued his probation. We disagree.

       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 v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not given to

trial courts and sentences were scrutinized too severely on appeal, trial judges might be

less inclined to order probation. Id. Accordingly, a trial court’s sentencing decision for a

probation violation is reviewable using the abuse-of-discretion standard. Id. An abuse of

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

circumstances. Id.


                                             3
       If a trial court finds that a person has violated his probation before termination of

the period, the court may order execution of all or part of the sentence that was suspended

at the time of initial sentencing. Ind. Code § 35-38-2-3(g). In this case, we find that

Banks’ criminal history and likelihood of reoffending sufficiently support the trial court’s

decision to order execution of the previously suspended four years. When imposing

Banks’ probation-revocation sentence, the trial court cited his extensive criminal history.

In addition to a number of juvenile adjudications, the record shows that Banks—who was

thirty-six years old at the time of sentencing—has eighteen felony convictions, including

convictions for theft, burglary, operating a motor vehicle while intoxicated, operating a

motor vehicle after being adjudged a habitual traffic offender, possession of marijuana,

carrying a handgun without a license, pointing a handgun, criminal mischief, and a

number of habitual-offender enhancements.

       Banks’ sole argument on appeal is that “it would have been more reasonable for

the trial court to sentence Banks to serve some shorter period of incarceration and

continue him on probation, possibly modifying the conditions of his probation to include

[a] drug[-]treatment program.” Appellant’s Br. p. 5. We cannot agree. Banks has a

significant criminal history and failed to take advantage of the alternative sentencing

opportunity previously afford to him. As the trial court aptly noted, “probation has not

worked” for Banks. Tr. p. 54. The trial court did not abuse its discretion in ordering

Banks to serve his entire previously suspended four-year sentence.

       Affirmed.

BAILEY, J., and BROWN, J., concur.


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