      MEMORANDUM DECISION
                                                                      Mar 12 2015, 10:15 am
      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
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Plainfield, Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James M.A. Howard,                                       March 12, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               84A05-1408-CR-396
              v.                                               Appeal from the Vigo Superior
                                                               Court
      State of Indiana,                                        The Honorable David R. Bolk,
                                                               Judge
      Appellee-Plaintiff.
                                                               Case No. 84D03-1207-FC-2330




      Vaidik, Chief Judge.



                                            Case Summary
[1]   James M.A. Howard was serving the first year of a three-year probation

      sentence when he committed felony burglary. The trial court revoked his


      Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015      Page 1 of 5
      probation and ordered him to serve two years of his previously suspended three-

      year sentence. Howard argues that the trial court abused its discretion in not

      returning him to probation. Because the trial court had no reason to believe

      that Howard would be deterred from committing more crimes if he remained

      on probation, we affirm Howard’s sentence.



                            Facts and Procedural History
[2]   In 2012 Howard pled guilty to Class C felony battery by means of a deadly

      weapon. Appellant’s App. p. 19. In January 2013 the trial court sentenced him

      to five years, with two years “executed as a direct commitment to the Vigo

      County Work Release Program” and three years suspended to probation. Id. at

      23-24. Because of credit time that Howard had accrued before sentencing, the

      court found that he had already “served the executed portion of [his] sentence

      in its entirety” and placed him on probation. Id. at 23.


[3]   In October 2013, while Howard was serving the first year of his probation

      sentence, he broke into a house and barn and stole guns and tools. State’s Ex.

      1. The State charged Howard with Class C felony burglary and Class A

      misdemeanor criminal trespass. Howard pled guilty to Class C felony burglary

      in June 2014.


[4]   Meanwhile, in November 2013 the probation department filed a notice of

      probation violation alleging that Howard violated his probation by committing

      a criminal offense while he was on probation. Appellant’s App. p. 32. At the


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      probation-violation hearing in July 2014, Howard admitted that he violated the

      terms of his probation. Tr. p. 5. He asked the trial court to “restore[] him to

      probation” and give him a chance to get a job, pay his child support, and visit

      his son. Id. at 10-11. Howard testified that he was living with his grandparents

      at the time of his arrest, but if he were released, he would “[m]ost likely” live at

      his aunt’s house. Id. at 8. Howard said that although he was not working at the

      time of his arrest, he was “about to start a job in Avon with [his] uncle” at a

      steel factory making $10-15/hour. Id.


[5]   In pronouncing sentence, the trial court noted its frustration that Howard, while

      on probation, did not “gain[] some tools to help himself stay crime-free.” Id. at

      16. Instead, nine months after being placed on probation, Howard “committed

      a burglary” involving guns. Id. at 17. Accordingly, the trial court ordered that

      two years of Howard’s previously suspended three-year sentence be executed at

      the Indiana Department of Correction. Id.


[6]   Howard now appeals.



                                Discussion and Decision
[7]   Howard contends that the trial court abused its discretion in not returning him

      to probation. 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


      Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015   Page 3 of 5
      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.


[8]   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(h)(3).

      Here, Howard argues that he should be returned to probation because “he had

      secured full-time employment at a steel factory earning enough money to

      support his dependent child,” “he had arranged to live with family members in

      a stable environment,” and “he exercised regular parenting time with his son.”

      Appellant’s Br. p. 4. This evidence does not show that the trial court abused its

      discretion. Howard committed a burglary while serving the first year of a three-

      year probation sentence. Moreover, Howard did so while he was already living

      with family members (his grandparents) and while he already had parenting

      time with his son and was court-ordered to support him. In addition, other

      than his own testimony, Howard presented no evidence that he was “about” to

      start a job when he was arrested or that the job was still available given his

      newest felony conviction. Even if it were true that Howard was taking steps to

      improve his life, none of these things stopped him from breaking into a house

      and barn to steal guns and tools while he was in the early stage of probation.

      Accordingly, the trial court had no reason to believe that Howard would be


      Court of Appeals of Indiana | Memorandum Decision 84A05-1408-CR-396 |March 12, 2015   Page 4 of 5
      deterred from committing more crimes if he remained on probation. We

      therefore affirm Howard’s sentence.


[9]   Affirmed.


      Baker, J., and Riley, J., concur.




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