Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                         Sep 10 2014, 9:06 am
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:

DONALD R. SHULER                                  GREGORY F. ZOELLER
Barkes, Kolbus, Rife & Shuler, LLP                Attorney General of Indiana
Goshen, Indiana
                                                  JESSE R. DRUM
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MELISSA S. JOHNSON MABIE,                         )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )        No. 43A03-1404-CR-112
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                            The Honorable Joe V. Sutton, Judge
                              Cause No. 43D03-1201-FD-13



                                      September 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Melissa S. Johnson Mabie appeals the trial court’s revocation of her probation.

Mabie raises a single issue for our review, namely, whether the trial court abused its

discretion when it sentenced Mabie following the court’s revocation of her probation.

       We affim.

                       FACTS AND PROCEDURAL HISTORY

       On January 26, 2012, Mabie pleaded guilty to nonsupport of a dependent child, as

a Class D felony. The trial court accepted Mabie’s plea that same day and ordered her to

serve three years, all of which the court suspended to probation.

       On May 16, 2013, the State filed a petition of probation violation with the court.

In its petition, the State alleged that Mabie had filed to inform her probation officer of her

employment status since January 8, 2013, and that she had not made required child

support payments since January 11, 2013. On February 11, 2014, Mabie admitted that

she had violated the terms of her probation as alleged.

       On March 13, 2014, the court held Mabie’s sentencing hearing. At that hearing,

the court found as mitigating circumstances that Mabie admitted to the probation

violations and that she had no criminal history.          The court found no aggravating

circumstances. The court then ordered Mabie to “be incarcerated at the Kosciusko

County Jail for a period of thirty-six (36) months, with eighteen (18) months

suspended . . . on formal probation.”      Appellant’s App. at 61.        The court further

authorized Mabie’s participation in work release “as long as she remains qualified.” Id.

This appeal ensued.


                                              2
                            DISCUSSION AND DECISION

       Mabie asserts that the trial court abused its discretion when it sentenced her

following the revocation of her probation. As our supreme court has explained:

       Probation is a matter of grace left to trial court discretion, not a right to
       which a criminal defendant is entitled. The trial court determines the
       conditions of probation and may revoke probation if the conditions are
       violated. 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. Accordingly, a trial
       court’s sentencing decisions for probation violations are reviewable using
       the abuse of discretion standard. An abuse of discretion occurs where the
       decision is clearly against the logic and effect of the facts and
       circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).

       Upon the revocation of probation, the trial court may impose one or more of the

following sanctions:

       (1) Continue the person on probation, with or without modifying or
       enlarging the conditions.

       (2) Extend the person’s probationary period for not more than one (1) year
       beyond the original probationary period.

       (3) 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). And, pursuant to Indiana Code Section 35-50-2-7(a), “[a]

person who commits a Class D felony shall be imprisoned for a fixed term of between six

(6) months and three (3) years, with the advisory sentence being one and one half (1 ½)

years.”




                                             3
      Here, Mabie first asserts that the trial court abused its discretion when it “imposed

the maximum sentence possible in this matter.” Appellant’s Br. at 8. According to

Mabie, her new sentence of eighteen months of incarceration followed by eighteen

months of probation is the equivalent to three years of incarceration. We reject this

argument.

      Mabie’s sentence following the revocation of her probation is not the maximum

sentence possible.    “Common sense dictates that less executed time means less

punishment.” Jenkins v. State, 909 N.E.2d 1080, 1084 (Ind. Ct. App. 2009), trans.

denied. “[A] maximum sentence is not just a sentence of maximum length, but a fully

executed sentence of maximum length.” Id. at 1085-86 (emphasis original); see also

Davidson v. State, 926 N.E.2d 1023, 1024-25 (Ind. 2010) (holding that, under Indiana

Appellate Rule 7(B), “appellate courts may consider all aspects of the penal

consequences imposed by the trial judge”). As Mabie did not receive a fully executed

sentence of three years, she did not receive a maximum sentence.

      Moreover, pursuant to Indiana Code Section 35-38-2-3(h)(3), upon the revocation

of her probation the trial court could have ordered Mabie to execute the entirety of her

originally suspended three-year sentence. As our supreme court stated in Stephens v.

State, 818 N.E.2d 936, 942 (Ind. 2004), a “[d]efendant is not entitled to any credit toward

sentence of the time spent on probation once he violated its conditions.” Indeed, had the

trial court simply ordered Mabie to execute the balance of the term it had originally




                                            4
suspended, the court’s order would have been for a twenty-month term of incarceration,1

which is more than the executed term the court actually ordered.

         Further, Mabie’s reliance on Mask v. State, 829 N.E.2d 932 (Ind. 2005), is

misplaced. As our supreme court has since clarified:

         Mask dealt with Indiana’s cap on consecutive sentencing in certain felony
         crime sprees, limiting a judge’s ability to “stack” sentences for multiple
         crimes arising out of a single episode. of conduct. . . . We held that for
         purposes of applying the consecutive sentence cap, the sentence imposed—
         whether suspended or executed—controlled, because a defendant
         subsequently could violate his probation, have back-up time imposed, and
         thus serve a sentence that exceeds the statutory cap. . . . Mask does contain
         language that appears to support [the defendant’s] position:
         “[i]ncarceration in the context of [Indiana Code Section 35-50-1-2(c)] does
         not mean the period of executed time alone.” The emphasized text,
         however, makes it clear that Mask’s essential holding is confined to the
         context in which it arose—the consecutive sentencing cap statute . . . .

Jennings v. State, 982 N.E.2d 1003, 1008 (Ind. 2013) (emphases and first alteration

original to Jennings; citations omitted). Likewise here, Mask’s essential holding does not

apply.

         Mabie next argues that “the maximum possible sentences are generally most

appropriate for the worst offenders,” and that the court “found there to be no aggravating

circumstances, yet imposed the maximum sentence.” Appellant’s Br. at 8-9 (quotation

and citation omitted). But, again, Mabie did not receive the maximum possible sentence

because she did not receive three years of incarceration. As we have already rejected the

premise underlying these arguments, we need not consider them further. We cannot say

         1
           The State filed its petition of probation violation about sixteen months into Mabie’s original
thirty-six month term of probation, and the trial court issued its summons to Mabie that same day. As a
matter of law, the issuance of the summons tolled Mabie's probationary period until the court’s final
determination on the petition, which occurred nine months later in February of 2014. I.C. § 35-38-2-3(c).
Thus, at the time the court sentenced Mabie for her probation violation, Mabie had a remaining, original
probationary term of twenty months.
                                                   5
that the trial court abused its discretion when it sentenced Mabie following the revocation

of her probation. Thus, we affirm her sentence.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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