MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Feb 17 2016, 8:40 am
regarded as precedent or cited before 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
R. Patrick Magrath                                       Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samantha J. Perez                                        February 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1507-CR-814
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable William E. Vance,
Appellee-Plaintiff                                       Senior Judge
                                                         Trial Court Cause No.
                                                         36C01-1212-FC-81



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016   Page 1 of 5
[1]   Samantha Perez (“Perez”) appeals her probation revocation and argues that the

      Jackson Circuit Court abused its discretion when it ordered her to serve the

      balance of the previously suspended three-year sentence in the Department of

      Correction.

[2]   We affirm.


                                    Facts and Procedural History

[3]   On March 27, 2013, Perez entered into a plea agreement agreeing to plead

      guilty to one count of Class C felony forgery. In exchange for her guilty plea,

      the State agreed to dismiss eight additional Class C felony forgery counts.

      Pursuant to the terms of the plea agreement, on June 2, 2013, Perez was

      ordered to serve a four-year sentence, with one year served in home detention

      as a direct commitment through community corrections and the remaining

      three years suspended to supervised probation. Perez also agreed to pay

      restitution to the victims of the nine charged forgeries.

[4]   On October 14, 2013, the State filed a petition to revoke Perez’s home detention

      after she was charged with possessing methamphetamine, marijuana, and drug

      paraphernalia. A second petition was filed shortly thereafter alleging that Perez

      left her residence without permission, failed to maintain steady employment,

      failed to remain current on her home detention fees, and had an individual in

      her home who was wanted on an active arrest warrant.


[5]   On January 29, 2014, Perez admitted that she violated the terms of her home

      detention and agreed that she would serve the remainder of her home detention

      Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016   Page 2 of 5
      sentence in a correctional facility. In exchange, the State agreed to dismiss its

      October 14, 2013, petition to revoke Perez’s probation. After she was released

      from incarceration, Perez began serving her three-year term of supervised

      probation.

[6]   On March 30, 2015, the State filed petition to revoke Perez’s probation alleging

      that Perez violated her probation by committing Class A misdemeanor theft.

      Specifically, the allegation was that she shoplifted a hairbrush and a flashlight.

      Perez admitted that she violated her probation. On June 17, 2015, the trial court

      ordered Perez to serve the balance of her previously suspended three-year

      sentence in the Department of Correction. Perez now appeals.

                                        Discussion and Decision

[7]   Perez argues that the trial court abused its discretion when it revoked her

      probation and ordered her to serve the balance of her previously suspended

      three-year 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). Once a court has exercised this grace, the judge

      has considerable leeway in deciding how to proceed. Id. It is thus within the

      discretion of the court to determine the conditions of the defendant’s placement

      and to revoke that placement if those conditions are violated. 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 effects of the facts and circumstances

      before the court. Prewitt, 878 N.E.2d at 188.


      Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016   Page 3 of 5
[8]    Once a trial court has determined that probation has been violated, it may

       continue the defendant on probation, extend the probationary period for not

       more than one year beyond the original period, or order all or part of the

       previously suspended sentence to be executed. Ind. Code § 35-38-2-3(h). The

       imposition of an entire suspended sentence is within the trial court’s discretion.

       See Sanders v. State, 825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005), trans. denied.


[9]    Perez claims that ordering her to serve the balance of her previously suspended

       three-year sentence, i.e., the most severe sanction allowed under Indiana Code

       section 35-38-2-3(h), is not warranted because she has a minimal criminal

       history, she admitted to the violation, and she expressed remorse. Perez also

       argues that she has attempted to maintain employment but was let go from her

       job. She claims that she is willing to make restitution but has not had the ability

       to do so. Perez also has four children, and at the revocation hearing, she argued

       that her incarceration would be a hardship for them.


[10]   The trial court doubted Perez’s claim that she had been employed because no

       evidence was presented that would have corroborated her claim. In addition,

       Perez’s inability to comply with the conditions of her home detention and

       probation is well documented in this case. The trial court noted and the record

       establishes that Perez has had numerous chances to prove that she is able to

       successfully complete her sentence in home detention and according to the

       terms of her probation. Given the facts and circumstances of this case, and

       particularly the fact that Perez’s most recent violation of a condition of her

       probation was committing theft, we conclude that the trial court acted within its

       Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016   Page 4 of 5
       discretion when it ordered Perez to serve the balance of her previously

       suspended three-year sentence.

[11]   Affirmed.

       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016   Page 5 of 5
