MEMORANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                             Aug 17 2016, 5:47 am
this Memorandum Decision shall not be
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
Gary A. Cook                                             Gregory F. Zoeller
Peru, Indiana                                            Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Raber,                                             August 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1512-CR-2291
        v.                                               Appeal from the
                                                         Howard Superior Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-0910-FD-921,
                                                         34D01-0912-FB-1097



Altice, Judge.


                                     Case Summary




Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016   Page 1 of 5
[1]   Brian Raber appeals from the trial court’s order revoking his probation. Raber

      argues that the trial court abused its discretion when ordering him to serve the

      remainder of his suspended sentences in the Department of Correction (DOC).


[2]   We affirm.


                                   Facts & Procedural History


[3]   On May 5, 2010, Raber pled guilty to class D felony invasion of privacy under

      cause number 34D01-0910-FD-00921 (FD-921) and class B felony dealing in

      methamphetamine under cause number 34D01-0912-FB-01097 (FB-1097).

      That same day, the trial court sentenced Raber to eighteen months incarcerated

      with twelve months suspended to probation for the class D felony invasion of

      privacy. For the class B felony dealing in methamphetamine, the trial court

      sentenced Raber to fifteen years incarcerated with six years suspended to

      probation. The trial court ordered Raber to serve these sentences consecutively.


[4]   Soon after being released from the DOC, Raber violated his probation in June

      2014 and was ordered to serve 160 days of his suspended sentence in FB-1097

      in the DOC. Shortly thereafter, Raber again violated his probation by not

      complying with the conditions of the in-home detention agreement. As a result

      of this second violation, Raber was ordered to serve 455 days of his suspended

      sentence in FB-1097 in the DOC, which essentially amounted to time served

      while awaiting his probation violation hearing.




      Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016   Page 2 of 5
[5]   On April 22, 2015, Raber reported to the probation department in connection

      with FB-1097 and FD-921. While there, he admitted overdosing on heroin.

      On May 20, 2015, the probation department conducted a home visit at Raber’s

      residence. At that time, he admitted violating his probation by using

      methamphetamine and heroin. The next day, Raber was unable to provide a

      urine drug screen at the probation department and asked if he could just “sign

      an admission statement admitting that [he] would be positive for meth and

      heroin.” Transcript at 10. On June 16, 2015, Raber failed to report to his

      probation officer. Two weeks later the State filed a petition to revoke Raber’s

      probation in both FB-1097 and FD-921.


[6]   On October 28, 2015, the trial court held a combined hearing on the revocation

      petitions. At the hearing, Raber admitted that he violated probation as alleged.

      The trial court reconvened on November 18, 2015, at which time it issued the

      following:

              I agree that Mr. Raber is an addict and he may want treatment
              but he certainly hasn’t proved it so far. He’s done everything he
              could to avoid going to treatment . . . . Accordingly, I’m going to
              order the balance of his suspended sentence in connection with
              Cause Number F[B]-1097, which I find to be 1,575 days
              executed. . . . I’m going to order the balance of his suspended
              sentence which the court finds to be 365 days in connection with
              Cause Number FD-921, be executed. . . . The sentences in this
              case are consecutive.


      Id. at 16.


[7]   Raber now appeals. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016   Page 3 of 5
                                       Discussion & Decision


[8]    Raber argues that the trial court abused its discretion in ordering him to serve

       the remainder of his suspended sentences under FB-1097 and FD-921. Our

       Supreme Court has explained that “[p]robation 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). The trial court “determines the

       conditions of probation and may revoke probation if the conditions are

       violated.” Id. Further, when a trial court has exercised its grace by granting

       probation in lieu of incarceration, it has “considerable leeway in deciding how

       to proceed” when a probation violation occurs. Id.


[9]    Additionally, “a trial court’s sentencing decisions for probation violations are

       reviewable using the abuse of discretion standard.” Brandenburg v. State, 992

       N.E.2d 951, 953 (Ind. Ct. App. 2013). An abuse of discretion occurs where

       “the decision is clearly against the logic and effect of the facts and

       circumstances.” Id. Although the court has several alternative sanctions it may

       impose where it has found that a defendant has violated probation, one of those

       sanctions is to order execution of all or part of the sentence that was suspended

       at the time of initial sentencing. Id.; see also Ind. Code § 35-38-2-3-(h)(3).


[10]   Here, there was overwhelming evidence to support the revocation of Raber’s

       suspended sentences. The record establishes that Raber violated his probation

       in June 2014, August 2014, and again in April through June 2015. All of these

       violations occurred within a year of being released from the DOC. The trial


       Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016   Page 4 of 5
       court afforded leniency to Raber for his previous violations by ordering

       executed only a portion of his previous suspended sentence. Raber claims that

       his drug addiction and emotional issues are medical issues that should be

       considered by the trial court. However, Raber squandered each opportunity he

       was given by continuing to use drugs and violating the conditions of his

       probation.


[11]   The trial court noted that Raber is an addict and that although “he may want

       treatment . . . he certainly hasn’t proved it so far.” Transcript at 16. It was

       within the trial court’s discretion to revoke the suspended sentences. Raber has

       not demonstrated that the trial court abused its discretion in ordering that he

       serve his suspended sentences under FB-1097 and FD-921 in the DOC.


[12]   Judgement affirmed.


[13]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016   Page 5 of 5
