MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                         Jun 27 2018, 10:19 am
court except for the purpose of establishing
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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Harold Driver, Jr.,                               June 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A04-1712-CR-2995
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Chris D. Monroe,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         36C01-1106-FB-17



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018               Page 1 of 11
[1]   Joseph Harold Driver, Jr., appeals his sentence following the revocation of his

      probation. Driver raises one issue which we revise and restate as whether the

      trial court abused its discretion in ordering him to serve the remainder of his

      previously suspended sentence. We affirm.


                                       Facts and Procedural History

[2]   On June 22, 2011, the State charged Driver with attempted dealing in

      methamphetamine as a class B felony. On September 22, 2011, he pled guilty.

      On October 18, 2011, the court accepted Driver’s guilty plea and ordered that

      he “be imprisoned for 8 years in the appropriate correctional facility, 5 years

      suspended, placed on supervised probation for 5 years” and that he receive “132

      days credit, 132 days credit time.” Appellant’s Appendix Volume 2 at 51. At

      some point, Driver’s probation was transferred from Jackson County to the

      state of Tennessee.


[3]   On August 2, 2017, the State filed a petition to revoke probation and request for

      a warrant, which alleged that, on or about July 20, 2017, Driver had committed

      two counts of domestic assault and a count of unlawful possession of a weapon

      by a convicted felon “as charged in Rutherford County, Tennessee under cause

      #F-77554, a direct violation of Condition #2 in his Order of Probation.” 1 Id. at

      61.




      1
       The Appellant’s Appendix contains the court’s order of probation, which is addressed to “Joe H. Driver Jr.”
      at Murfreesboro, Tennessee and which states, under the heading “Standard Conditions of Probation,” “2.
      You must not commit another criminal offense. If you do commit another criminal offense, your probation

      Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018           Page 2 of 11
[4]   On December 6, 2017, the court held a hearing. When it asked how Driver

      wished to proceed, the following exchange occurred:


               [Driver’s Counsel]: Your Honor, I was told that the prior
               hearing where [Driver] was Pro Se, that the [c]ourt had withdrew
               the sanctions but left the admissions . . .

               THE COURT: Well, that’s my recollection, but sometimes
               when I appoint counsel the [d]efendant may want to do more.
               As I advised him at the hearing the allegation of the violation is
               by a criminal charge and the [c]ourt’s understanding is that he
               pled guilty to that charge and so . . . as I understood [Driver’s]
               objection from the [c]ourt’s previous, a couple hearings ago, was
               the disposition but not the finding of a violation.

               [Driver’s Counsel]: He still is admitting to the allegation and . .
               [.]

               THE COURT: Okay.

               [Driver’s Counsel]: [. . .] arguing the sanctions.


      Transcript Volume 1 at 3.


[5]   Probation Officer Jacob Finley testified Tennessee submitted an annual

      progress report regarding Driver’s probation “usually about February” for the

      first four years of his supervision which said that Driver was in compliance but




      may be revoked.” Appellant’s Appendix Volume 2 at 57. Under the heading of “Special Conditions,” the
      order states, “26. You shall submit to a responsible drug and alcohol abuse program for evaluation by 3-1-
      2013. If the evaluation reveals a need for therapy, you must complete that program as established and pay all
      costs associated therein.” Id. at 59. The initials “JD” appear in the space provided next to all the conditions
      imposed by the court.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018              Page 3 of 11
      that in “January of 2017 we started to receive information that [Driver had]

      picked up some new arrests in November and December of 2016.” Id. at 13-14.


[6]   Driver testified that he had a leg and foot injury and back issues and then

      stated: “My health, other than – My health’s all right pretty much.” Id. at 5.

      He testified that he received one year probation for the “gun charge” in the

      “felony case” in Tennessee and stated, when asked if that was the only case he

      had in Tennessee, that “[t]he other two (2) was [sic] misdemeanors. I got drunk

      on some moonshine and, you know, I got into it with my wife and daughter

      and, you know, at the time and they gave me just a domestic on it.” Id. at 6.

      When asked again if any other charges were filed in Tennessee, he answered,

      “[n]o. Just a Reckless Driving,” and added, “[t]hey just put me on like a three

      (3) month probation thing, you know, on misdemeanor probation. ‘Cause I’m

      on misdemeanor and felony probation down there.” Id. at 7. He agreed that he

      had a substance abuse problem and stated, “I mean, I drank a lot, yeah, every

      now and then. That’s my big problem, I drink, you know, and that’s what gets

      me in trouble.” Id.


[7]   According to his testimony during cross-examination, Driver pled guilty to the

      “Reckless Driving case” and to the “other case . . . [involving] Domestic

      Assault, Domestic Assault, Two Counts, and Unlawful Possession of a

      Weapon.” Id. at 8. He responded he received at least two DUI charges in

      Tennessee and a charge of having “a weapon inside of [a jail] facility” when he

      “went into the jail . . . and . . . was drunk and . . . took it off and showed it to

      them” that, “they threw . . . out of [c]ourt.” Id. at 10. He indicated that he

      Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 4 of 11
      “caught a DUI and Reckless Driving” in Kentucky for “flying down the

      interstate too fast,” answered affirmatively when asked if he had “a Marijuana

      in Tennessee” in 2009, and stated “I mean, I’ve had a little trouble with drugs

      too.” Id. at 11. When asked if he also had probation violations, he answered:

      “Yeah. I mean, down there every time you get, I mean, you ain’t got to be

      convicted down there, especially on misdemeanor. They’ll violate you right off

      the top right there. You going to get a violation.” Id.


[8]   Driver indicated that he was still married to his wife, C.D., at which point the

      court asked if she was the one he battered in Tennessee and he responded, “I’ve

      got the charge for that, but I mean, I didn’t touch her.” Id. at 16. The following

      exchange occurred:


              THE COURT: So you didn’t really do it but you pled guilty
              anyway?

              [Driver]: Yeah, I pled guilty to it, yes.

              THE COURT: So you lied to somebody. I don’t know how
              they do it in Tennessee but do they swear you in and have you
              agree that you committed the offense?

              [Driver]: Huh?

              THE COURT: I don’t know how they do it in Tennessee, but in
              Indiana we require that someone be placed under oath, swear
              them in, and then they testify and they admit that they
              committed the crime. Is that what they do in Tennessee?

              [Driver]: Well, down there I just signed a plea but they didn’t
              have no –

              THE COURT: Okay. So you signed a document.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 5 of 11
        [Driver]: Yeah.

        THE COURT: Is that what you’re saying?

        [Driver]: I mean, yeah. I mean, she was supposed to. And me, I
        signed it too right there, I mean, but I just, I just took the charge,
        you know.

        THE COURT: All right. Well, you, you’re doing something
        similar to what you’ve done before. You kind of go on and
        that’s, you know, not a big problem but – It sounds to me like
        you signed a Plea Agreement that said you agree you committed
        the crime and now you’re kind of hedging on that. I think you
        made some kind of comment like, “Well, you know, yeah, I hit
        her before but, you know, it’s only every so often or something.”

        [Driver]: Well no, ‘cause I ain’t never hit my wife.

        THE COURT: Never hit her?

        [Driver]: I never hauled off and hit her, not one time.

        THE COURT: Did you ever push her?

        [Driver]: Well yeah. I’ve grabbed her arms to contain her when
        she’d come at me, but that’s about all I’ve done.

        THE COURT: Okay. You know that’s a Battery.

        [Driver]: Yeah, I know.

        THE COURT: That’s illegal.

        [Driver]: I know.


Id. at 16-17. Driver indicated that he violated two protection orders with his

wife when asked by the court about his presentence report. When the court

inquired into his alcohol usage, the following exchange occurred:


Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 6 of 11
              THE COURT: So why do you keep drinking?

              [Driver]: I wish I could just throw it down there.

                                               *****

              THE COURT: Why don’t you stop?

              [Driver]: I don’t know why I quit drinking, I mean, keep
              drinking.

              THE COURT: So that’s a problem because if you don’t know
              why, you will not stop. Obviously you haven’t stopped. And so
              if you still drink, first of all that’s a violation of the condition of
              probation here. Okay?

              [Driver]: Okay.

              THE COURT: . . . So it sounds to me like it’s likely, the first
              choice you have to make is are you going to drink or not. And
              you choose to drink. Then under the influence you make other
              poor choices. . . . So, you don’t get it yet. All right. You haven’t
              apparently even given your drinking any significant
              consideration. And based upon your own testimony here today
              it’s your drinking that gets you in trouble. Is that right?

              [Driver]: Yes, sir. I’ve been, I’m, I’ve been thinking, I mean, the
              whole time I’ve been in jail, you know, about, you know, about
              my drinking. I’m going to quit. It pays not to be drinking
              (indiscernible).


      Id. at 18-19. When asked if he was saying that he was going to stop drinking

      now, Driver stated he was going to try his best and, when the court asked for

      specifics, he described his daughter’s pregnancy and wife’s attempted suicide.


[9]   On December 12, 2017, the court entered an order revoking Driver’s probation,

      finding that Driver acknowledged under oath he had violated the terms of his

      Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 7 of 11
       supervised probation as alleged in the State’s petition to revoke probation and

       ordered the “suspended sentence of five (5) years into execution to be served in

       the appropriate penal facility.” Appellant’s Appendix Volume 2 at 70.


                                                   Discussion

[10]   The issue is whether the court abused its discretion in ordering Driver to serve

       the remainder of his previously suspended sentence. Driver does not challenge

       the finding that he violated his probation. Rather, he argues, in effect, that his

       ready admission to the present violation and the completion of “almost all of

       his suspended sentence without any violation,” dictate that the trial court

       abused its discretion by revoking his entire suspended sentence. Appellant’s

       Brief at 12. Specifically, he contends that “[w]ith a short period o[f] probation

       left to complete, [he] made a mistake,” “received new charges,” and “admitted

       to his mistake as soon as was able to.” Id. He contends that the court’s order to

       serve the balance of his suspended sentence came “the day after he was

       scheduled to be terminated from probation.” Id. at 9. He also points to several

       medical, financial, and family circumstances to explain and mitigate the

       violation, and argues that “[he] and his dependents are suffering undue

       hardship as a result of the . . . revocation of his suspended sentence. The

       physical and mental wellbeing of, [sic] not only Driver, is substantial[ly]

       impacted by the trial court’s error.” Id. at 11-12.


[11]   The State argues that Driver admitted to consuming alcohol and being

       convicted of reckless driving while on probation, both violations of his

       probation, that the court had discretion to order him to serve his previously
       Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 8 of 11
       suspended sentence, and that he has essentially invited this Court to reweigh his

       admitted violations. The State further contends that his family circumstances

       do not mandate a finding of undue hardship, his physical condition is not

       deserving of mitigation, and his claim of mental illness is “at best speculative”

       given that no evidence has “established any nexus between [Driver’s] conduct

       and any mental health issue.” Appellee’s Brief at 9.


[12]   Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial

       court finds a probation violation and provides:


               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke is
               filed within the probationary period, the court may impose one (1)
               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.


[13]   The Indiana Supreme Court has held that trial court probation violation

       determinations and sanctions are reviewed using the abuse of discretion

       standard. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007)). The Court explained that “[o]nce a

       trial court has exercised its grace by ordering probation rather than

       incarceration, the judge should have considerable leeway in deciding how to

       Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 9 of 11
       proceed” and that “[i]f 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.” Prewitt, 878 N.E.2d at 188.

       An abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances. Id. (citation omitted). As long as the

       proper procedures have been followed in conducting a probation revocation

       hearing, “the trial court may order execution of a suspended sentence upon a

       finding of a violation by a preponderance of the evidence.” Goonen v. State, 705

       N.E.2d 209, 212 (Ind. Ct. App. 1999). When the alleged probation violation is

       the commission of a new crime, conviction of the new crime is not required.

       Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (citing Richeson v. State,

       648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied).


[14]   The record reveals that the trial court initially ordered Driver to be imprisoned

       for eight years with “5 years suspended, placed on supervised probation for 5

       years.” Appellant’s Appendix Volume 2 at 51. As pointed out in his brief,

       Driver does not challenge the finding that he violated his probation. At the

       probation revocation hearing, he admitted to the allegation in the State’s

       petition that he had two counts of domestic assault and a count of unlawful

       possession of a weapon by a convicted felon. The court heard testimony from

       Driver regarding several charges in Tennessee and Kentucky, as well as

       admissions of probation violations, alcohol abuse, substance usage, and other

       protection order violations. When the court asked about his pleading guilty to

       assaulting his wife, Driver stated that he “never hit my wife,” admitted that he


       Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 10 of 11
       pushed her, and admitted that he “grabbed her arms to contain her when she’d

       come at me, but that’s about all I’ve done,” before acknowledging that he knew

       his action constituted a battery. Transcript Volume 1 at 17. He testified that he

       had a leg and foot injury and back issues, but stated that his health was “all

       right pretty much.” Id. at 5. To the extent Driver argues that his alleged

       medical, financial, and family circumstances explain and mitigate his violation,

       we will not reweigh the evidence below. Terrell v. State, 886 N.E.2d 98, 100

       (Ind. Ct. App. 2008) (citing Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct. App.

       2002), trans. denied).


[15]   Given the circumstances as set forth above, we cannot say that the court abused

       its discretion in ordering Driver to serve the remainder of his previously

       suspended sentence. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App.

       2008) (holding that the trial court did not abuse its discretion in reinstating the

       probationer’s previously suspended sentence), trans. denied.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm the trial court’s order that Driver serve the

       remainder of his previously suspended sentence.


[17]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018   Page 11 of 11
