MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Jun 18 2018, 10:52 am

court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jacob P. Wahl                                            Curtis T. Hill, Jr.
Steven E. Ripstra                                        Attorney General of Indiana
Ripstra Law Office
                                                         Caroline G. Templeton
Jasper, Indiana                                          Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alberto Barrios,                                         June 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A-CR-3012
        v.                                               Appeal from the
                                                         Pike Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Jeffrey L. Biesterveld, Judge
                                                         Trial Court Cause No.
                                                         63C01-1609-F5-625



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018                           Page 1 of 6
[1]   Alberto Barrios (“Barrios”) appeals his probation revocation from community

      corrections placement, contending that the trial court abused its discretion when,

      after Barrios committed a new offense, it sentenced him to the Indiana Department

      of Correction (“DOC”) for the remainder of his previously-suspended sentence.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On September 20, 2016, Barrios poured gasoline on himself and threatened to set

      himself on fire if his wife, A.B., left him. Barrios’s three children were in the

      residence when he made the threat. Tr. Vol. II at 12; Appellant’s App. Vol. 2 at 15-16.

      The State charged Barrios with neglect of a dependent, a Level 6 felony, and

      intimidation, a Level 5 felony. Id. at 2.


[4]   Barrios entered into a plea agreement which required him to stay away from the

      victims until 2021, but permitted him to write to his children once a year.

      Appellant’s App. Vol. 2 at 42. Barrios pled guilty to intimidation, and the State

      dismissed the neglect charge. Tr. Vol. II at 12. The trial court sentenced Barrios to

      six years, all of which was suspended to probation. Tr. Vol. II at 9; Appellant’s App.

      Vol. 2 at 41.


[5]   On April 9, 2017, Barrios called two of his children. Id. at 63-64. , The State filed

      a motion to revoke probation contending that Barrios committed invasion of

      privacy. Appellant’s App. Vol. 2 at 58, 62. The State alleged that Barrios waited

      outside of the church that A.B. and the children attended and attempted to contact

      them. Id. at 63. Barrios admitted to having direct contact with his children in
         Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018   Page 2 of 6
      violation of his probation terms and to having been charged with a new offense as

      a result of the contact. Tr. Vol. II at 25. The trial court revoked his probation and

      ordered that the remainder of his sentence be served on a work release program

      through community corrections. Tr. Vol. II at 27-28; Appellant’s App. Vol. 2 at 73-

      74.


[6]   On September 11, 2017, the State filed invasion of privacy charges against Barrios

      alleging that he called A.B. eight times in twenty minutes and that he left two

      messages, saying in one that he was going to retaliate against her because of what

      had been done to him. Appellant’s App. Vol. 2 at 77. On September 29, 2017, the

      State filed a motion to revoke community corrections.. Id. at 82.


[7]   Barrios admitted calling A.B and acknowledged that doing so was a violation of

      the protective order and the terms of his work release. Tr. Vol. II at 40-41. He also

      stated that A.B. knew where he lived, that he walked every Sunday at the same

      time and that A.B. brought the children to that area and he saw them. Id. at 45.

      Barrios said that he attempted to contact his children because he missed them. Id.

      at 46.


[8]   The trial court noted that Barrios admitted the allegations, that he had prior felony

      convictions and had violated probation, that he was a high risk to reoffend, and

      that prior lenient treatment was not successful. Id. at 61.                   The court concluded

      that it had no choice other than revoking his placement in community

      corrections and ordering him to serve the remainder of his previously-suspended

      sentence at in the DOC. Id. at 62. Barrios now appeals.


            Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018          Page 3 of 6
                                        Discussion and Decision
[9]   Barrios argues that the trial court abused its discretion when it ordered him to serve

      the remainder of his previously-suspended six-year sentence. “‘Probation is a

      matter of grace left to trial court discretion, not a right to which a criminal

      defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014)

      (quoting 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.; see also Ind. Code § 35-38-2-3(a). “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, 878 N.E.2d

      at 188. “If this discretion were not afforded to trial courts and sentences were

      scrutinized too severely on appeal, trial judges might be less inclined to order

      probation to future defendants.” Id. Accordingly, we review a trial court’s

      probation violation determination 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.” Jackson, 6 N.E.3d at 1042.


[10] Probation    revocation is a two-step process. Id. “First, the trial court must make a

      factual determination that a violation of a condition of probation actually

      occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)). “Second,

      if a violation is found, then the trial court must determine the appropriate sanctions

      for the violation.” Id. If a defendant is found to have violated probation, a trial

      court may (1) continue the defendant on probation; (2) extend the probationary

         Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018   Page 4 of 6
       period for not more than one year beyond the original period; or (3) order all or

       part of a previously-suspended sentence to be executed. Ind. Code § 35-38-2-3(g).


[11]   Barrios repeatedly violated the terms of his probation by contacting his children.

       On December 7, 2016, Barrios entered into a plea agreement with the State. Under

       the agreement, Barrios was prohibited from going to A.B.’s residence, his

       children’s school, and places where they frequented. Barrios was permitted to

       correspond with his children once a year. In return, the State agreed to a

       suspended sentence of six years on probation with credit for time served and GPS

       monitoring.


[12] On   August 28, 2017, a probation violation hearing was held in which Barrios

       admitted to contacting his wife and children in April 2017.                  The trial court

       imposed a sentence of five years and seventy-two days to be served at Wabash

       Valley Regional Community Corrections in the work release program.


[13] Three    weeks later, on September 11, 2017, Barrios contacted his family again,

       calling them eight times and leaving two messages, one of which threatened

       retaliation. The trial court ordered Barrios to serve his previously-suspended

       sentence in its entirety. Barrios had (1) an extensive criminal history with felony

       violations, (2) recently violated his probation, (2) failed to respond to more-lenient

       treatment, and (4) a high risk of re-offending. The trial court’s decision ordering

       Barrios to serve the remainder of his six-year sentence was not clearly against the

       logic and effect of the facts and circumstance before it, and the court did not abuse

       its discretion in revoking Barrios’ probation.


          Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018            Page 5 of 6
[14] Barrios   also contends that his sentence should have been modified, allowing him to

   remain on community corrections and providing an avenue to rehabilitate his

   relationship with his children. Barrios raises this argument for the first time on

   appeal, and it is, therefore, waived. See, e.g., Sisson v. State, 985 N.E.2d 1, 12 (Ind.

   Ct. App. 2012) (arguments raised for the first time on appeal are waived and will

   not be considered on appeal); Jackson v. State, 712 N.E.2d 986, 988 (Ind. 1999)

   (finding that the defendant cannot make a new argument for the first time on

   appeal); Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998) (stating that a defendant

   may not raise one ground for objection at trial and argue a different ground on

   appeal).


[15] Affirmed.


   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018   Page 6 of 6
