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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                               GREGORY F. ZOELLER
Special Assistant to the State Public Defender      Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                                 ANDREW R. FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  FILED
                                                                              Feb 29 2012, 9:39 am

                               IN THE
                                                                                      CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




STACEY L. CERTAIN,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 57A03-1105-CR-264
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM THE NOBLE CIRCUIT COURT
                            The Honorable G. David Laur, Judge
                               Cause No. 57C01-0604-FC-28



                                        February 29, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                             Case Summary

        Stacey L. Certain pled guilty to class C felony nonsupport of a dependent child and

was sentenced to eight years, with two years in prison and six suspended to probation. Twice

he was released on probation, and twice he was sent back to prison for violating his probation

by committing new felony offenses and failing to pay child support. He now appeals his

second probation revocation, claiming that the trial court abused its discretion in revoking his

probation without considering reasonable alternatives that would have enabled him to pay

toward his child support arrearage. Finding no abuse of discretion, we affirm.

                                   Facts and Procedural History

        Certain is the father of two children, for whom he is obligated to pay child support.

On April 28, 2006, the State charged him with class C felony nonsupport of a dependent

child.1 He pled guilty, and on March 8, 2007, the trial court sentenced him to eight years,

with two years executed and six suspended to probation.

        On November 14, 2007, Certain was released to probation. On August 4, 2008, the

probation department filed a probation violation report, citing nonpayment of child support

and probation fees as well as his arrest on a new charge of cocaine dealing. He admitted to

the violations, and the trial court ordered the execution of two years of his original suspended

sentence.




        1
          Indiana Code Section 35-46-1-5(a) states in part, “A person who knowingly or intentionally fails to
provide support to the person’s dependent child commits nonsupport of a child …. a Class C felony if the total
amount of unpaid support that is due and owing … is at least fifteen thousand dollars ($15,000).”


                                                      2
       On May 10, 2010, Certain was again released to probation. Although he obtained

employment, he made no child support payments. On December 15, 2010, the probation

department filed another probation violation report, citing nonpayment of support and

Certain’s arrest on two felony charges, one for class D felony theft and one for class C felony

operating a motor vehicle after forfeiture of license for life. At a May 5, 2011 hearing,

Certain admitted to nonpayment of support despite being employed during his six months’

probation. He also admitted to being convicted of operating a motor vehicle after forfeiture

of license for life and being sentenced to five years for that offense. The trial court again

revoked his probation and ordered the execution of two additional years of his original

suspended sentence. Certain now appeals.

                                  Discussion and Decision

       Certain contends that the trial court abused its discretion in revoking his probation.

Probation is a matter of grace and not a right to which a criminal defendant is entitled.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court sets the conditions of

probation and may revoke probation if the probationer violates those conditions. Id.

       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. 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. As such, we review probation revocation decisions for an abuse of discretion. Woods v.

State, 892 N.E.2d 637, 639 (Ind. 2008). An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances before it.


                                              3
Prewitt, 878 N.E.2d at 188.

       Probation revocation is a two-step process in which the trial court first must make a

factual determination that the probationer has violated at least one condition of his probation

and then must determine whether the violation warrants revocation of probation. Woods, 892

N.E.2d at 640. Where the probationer admits the allegations against him, the trial court can

proceed to the second step of the inquiry and determine whether the violation warrants

revocation. Id. At this point, the trial court has the option of (1) continuing the person on

probation, with or without modifying or enlarging the conditions; (2) extending the person’s

probationary period for not more than one year beyond the original probationary period; or

(3) ordering execution of all or part of the sentence that was suspended at the time of the

initial sentencing. Ind. Code § 35-38-2-3(g).

       Here, Certain admitted to violating his probation by committing class C felony

operating a motor vehicle after license forfeiture for life and not paying child support during

the six months after his second release. He argues that the trial court abused its discretion by

failing to consider available alternatives to incarceration that would enable him to make

payments toward his child support arrearage. However, consideration of any alternatives to

incarceration is a “matter of grace” and not a matter of right. Monday v. State, 671 N.E.2d

467, 469 (Ind. Ct. App. 1996). The record indicates that the trial court repeatedly showed

leniency to Certain. For example, the trial court initially suspended to probation six years of

his eight-year sentence, yet when he was released to probation, he violated its conditions by

committing crimes and by failing to meet his support obligations. This resulted in his first


                                               4
probation revocation. After his second release to probation, he was employed for six months,

yet he made no support payments during that time. Moreover, he reverted to his pattern of

committing crimes. At this juncture, his arguments for further leniency ring hollow. Thus,

we find no abuse of discretion here. Accordingly, we affirm.

       Affirmed.

MAY, J., and BROWN, J., concur.




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