MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                         Jul 19 2017, 6:43 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James M. Tabor,                                          July 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1703-CR-525
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1403-FC-789



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1703-CR-525 | July 19, 2017          Page 1 of 5
                                            Case Summary
[1]   James M. Tabor (“Tabor”) pled guilty to Operating a Vehicle after a Lifetime

      Forfeiture, as a Class C felony,1 and Possession of Marijuana, as a Class A

      misdemeanor.2 The trial court sentenced him to six years imprisonment, with

      two years to be served in community corrections and four years suspended to

      probation. Tabor subsequently violated the conditions of his probation. Tabor

      admitted the violations, and the trial court ordered the remainder of his prison

      term be executed. Tabor now appeals, raising for our review the sole issue of

      whether the trial court abused its discretion when it ordered the remainder of

      his prison term be served as executed time.


[2]   We affirm.



                                  Facts and Procedural History
[3]   On July 8, 2014, Tabor entered into a plea agreement with the State, confessing

      guilt as to Operating a Vehicle after a Lifetime Forfeiture and Possession of

      Marijuana. The trial court entered judgment against Tabor on July 23, 2014,

      and sentenced him to an aggregate term of incarceration of six years: six years

      of incarceration as to Operating a Vehicle after a Lifetime Forfeiture, and one




      1
        Ind. Code § 9-30-10-17. Tabor’s offenses were committed prior to the effective date of a comprehensive
      revision of Indiana’s criminal statutes. We refer through the statutes applicable at the time of Tabor’s
      offense.
      2
          I.C. § 35-48-4-11(1).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-CR-525 | July 19, 2017              Page 2 of 5
      year of imprisonment as to Possession of Marijuana, with the terms to run

      concurrent with one another. The trial court ordered two years of the sentence

      executed on in-home detention with community corrections, and suspended the

      remaining years of Tabor’s sentence to probation.


[4]   On January 10, 2017, the State filed a petition to revoke Tabor’s direct

      placement in home detention and/or to revoke his probation. On February 7,

      2017, a probation revocation hearing was conducted. Tabor admitted to several

      violations of the terms of his probation, and the trial court heard argument as to

      whether to revoke Tabor’s probation. At the hearing’s conclusion, the court

      revoked the entirety of Tabor’s suspended sentence, and ordered him to serve

      the remainder of his six-year sentence as executed time in the Department of

      Correction.


[5]   This appeal ensued.



                                 Discussion and Decision
[6]   Tabor challenges the trial court’s order requiring him to serve the remainder of

      his sentence as executed time in the Department of Correction.


[7]   Probation revocation is a two-step process. First, the court must determine

      whether the terms of probation have been violated; second, the court must

      determine appropriate sanctions for the violation. Heaton v. State, 984 N.E.2d

      614, 616 (Ind. 2013). The Indiana Supreme Court has set forth the standard



      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-CR-525 | July 19, 2017   Page 3 of 5
      under which we review decisions revoking probation and imposing sanctions

      for the violation of probation terms:


              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). It is within the discretion of the
              trial court to determine probation conditions and to revoke
              probation if the conditions are violated. Id. In appeals from trial
              court probation violation determinations and sanctions, we
              review for abuse of discretion. Id. An abuse of discretion occurs
              where the decision is clearly against the logic and effect of the
              facts and circumstances, id., or when the trial court misinterprets
              the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
              Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
              (“An abuse of discretion may also be found when the trial court
              misinterprets the law or disregards factors listed in the controlling
              statute.”)).


      Id.


[8]   Here, the trial court revoked Tabor’s probation and ordered him to serve the

      remainder of his six-year term of imprisonment as executed time. Tabor argues

      that this was an abuse of discretion given his prior history of substance abuse

      problems and his need for additional, intensive substance abuse treatment.


[9]   A review of the record discloses that Tabor had been afforded several

      opportunities to obtain substance abuse treatment in the past, but did not

      complete any treatment program. He has a series of criminal convictions

      involving substance abuse, often in combination with traffic violations. Tabor

      and the trial court both acknowledged his need for substance abuse treatment.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-CR-525 | July 19, 2017   Page 4 of 5
       Yet in light of Tabor’s multiple violations of the terms of his probation,

       including failure to call in for drug screens, failure to appear for drug screens,

       and possession of a device to adulterate a drug screen, we cannot conclude that

       the trial court’s decision to remand Tabor to the Department of Correction,

       with a recommendation for placement in a therapeutic program, was an abuse

       of the trial court’s discretion.


[10]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-CR-525 | July 19, 2017   Page 5 of 5
