                                                                             FILED
MEMORANDUM DECISION
                                                                        May 24 2016, 8:59 am

Pursuant to Ind. Appellate Rule 65(D),                                       CLERK
                                                                         Indiana Supreme Court
this Memorandum Decision shall not be                                       Court of Appeals
                                                                              and Tax Court
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
William T. Myers                                        Gregory F. Zoeller
Marion, Indiana                                         Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Allen Smith,                                       May 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1510-CR-1842
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Warren Haas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D03-1311-FD-499 and 27D03-
                                                        1408-F6-32



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016              Page 1 of 5
[1]   While on probation for his fifth and sixth operating while intoxicated (OWI)

      convictions, Mark Allen Smith violated the terms of his probation by

      consuming alcohol and breaking his curfew. As a result of these violations,

      which Smith admitted, the trial court ordered Smith to serve the remainder of

      his sentences in the Department of Correction (DOC). On appeal, Smith

      argues that the trial court abused its discretion.


[2]   We affirm.


                                        Facts & Procedural History


[3]   On November 19, 2013, Smith operated a vehicle while intoxicated with his

      four-year-old son in the back seat. Blood results showed he was driving with a

      combination of prescription drugs, marijuana, and alcohol in his blood stream.

      At the time of this offense, Smith was on probation under cause 27D03-1309-

      CM-137 (CM-137) for his fourth OWI conviction.


[4]   The State charged Smith with Class D felony neglect of a dependent and Class

      D felony OWI while endangering a life under cause 27D03-1311-FD-499 (FD-

      499). The State also filed a habitual offender allegation. On July 15, 2014,

      Smith pled guilty to the two Class D felonies under FD-499 and admitted

      violating probation for a second time in CM-137.1 In exchange, the State

      dismissed the habitual offender allegation and agreed to recommend a specific




      1
       On October 18, 2013, Smith admitted his first probation violation in CM-137. As a result, a curfew was
      imposed on him and he was ordered to attend two AA/NA meetings per week.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016             Page 2 of 5
      sentencing scheme, which the trial court approved. Accordingly, for the

      probation violation, Smith was ordered to serve 50 days executed, which was

      ordered to be served consecutive to the sentence under FD-499. With respect to

      the two Class D felonies, Smith was sentenced to concurrent 3-year terms of

      incarceration with 667 days suspended to probation.


[5]   Shortly after being placed on probation, Smith committed another OWI

      offense, charged under 27D03-1408-F6-32 (F6-32). In FD-499, the State filed a

      petition to revoke on August 14, 2014. Smith entered into another plea

      agreement on September 30, 2014. In exchange for his admitted probation

      violation in FD-499 and his guilty plea to a Level 6 felony OWI in F6-32,

      infractions were dismissed and Smith was sentenced as follows: 1) FD-499

      probation violation – 78 days executed and the remaining 589 days suspended

      to probation and 2) F6-32 – 912 days incarceration with 10 of those days

      executed and 902 days suspended to probation.


[6]   On February 26, 2015, the State filed petitions for revocation of probation in

      FD-499 and F6-32. Smith subsequently admitted that he violated probation on

      February 17, 2015, by consuming alcohol and violating curfew.2 At the

      conclusion of the dispositional hearing on September 30, 2015, the trial court




      2
       Smith was required to be in his residence between 10:00 p.m. and 6:00 a.m. each evening. He admitted
      spending the night at another residence without obtaining approval from his probation officer.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016           Page 3 of 5
      ordered Smith to serve the balance of his remaining sentences under FD-499

      and F6-32 in the DOC – 157 days and 902 days, respectively.


                                          Discussion & Decision


[7]   On appeal, Smith argues that the trial court abused its discretion when

      sanctioning him. He attempts to offer justifications for his most recent

      probation violations and describes them as merely “technical violations”.

      Appellant’s Brief at 6. Smith asks that we reverse and remand with instructions

      for the trial court to return him to probation.


[8]   Probation is a matter of grace and a conditional liberty that is a favor, not a

      right. State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015). Once a trial court

      has exercised its grace in this regard, it has considerable leeway in deciding how

      to proceed when the conditions of placement are violated. See Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). “Accordingly, a trial court’s sentencing

      decisions for probation violations are reviewable using the abuse of discretion

      standard.” Id. We will find an abuse of discretion only where the decision is

      clearly against the logic and effect of the facts and circumstances. See id.


[9]   In its lengthy written Judgment Imposing Sanctions, the trial court detailed

      Smith’s extensive criminal history and noted that “numerous efforts have been

      made to encourage him to behave lawfully, without success”. Appellant’s

      Appendix at 29. Indeed, over the years Smith has amassed six OWI convictions,

      three additional convictions (two Class D felonies and one Class A

      misdemeanor), and several probation violations. He has been granted leniency

      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016   Page 4 of 5
       time and again but has continued to violate the law and/or the conditions of his

       probation. The trial court indicated at the conclusion of its order that

       “Defendant is always polite and articulate when in Court. Unfortunately, his

       behavior out of Court has been an ongoing problem.” Id. at 30.


[10]   The trial court’s decision to deny Smith yet another chance is amply supported

       by the record and, thus, not clearly against the logic and effect of the facts and

       circumstances. The trial court was well within its discretion when it ordered

       the balance of Smith’s sentences executed.


[11]    Judgment affirmed.


[12]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016   Page 5 of 5
