MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
this Memorandum Decision shall not be                                    Jun 29 2018, 8:32 am

regarded as precedent or cited before any                                      CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Laura Sorge Fattouch                                     Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cameron Schmidt,                                         June 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-119
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69C01-1301-FB-2



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018                      Page 1 of 7
                                       Statement of the Case
[1]   Cameron Schmidt (“Schmidt”) appeals the revocation of his probation, arguing

      that the trial court abused its discretion by ordering him to serve three years of

      his previously suspended ten-year sentence. Finding no error, we affirm the

      trial court’s judgment.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion by ordering Schmidt
              to serve part of his previously suspended sentence.

                                                     Facts
[3]   In January 2013, the State charged eighteen-year-old Schmidt with three counts

      of Class B felony arson. In June 2014, Schmidt entered into a plea agreement

      and pled guilty to one count of Class B felony arson in exchange for the State’s

      dismissal of the remaining two counts and agreement that Schmidt would be

      sentenced to twenty years in the Indiana Department of Correction (“DOC”)

      and have ten years suspended to probation. The trial court accepted Schmidt’s

      guilty plea and, pursuant to the plea agreement, imposed a twenty (20) year

      sentence, with ten (10) years executed at the DOC and ten (10) years suspended

      to probation. Schmidt was required to report monthly to probation.


[4]   Schmidt was released from incarceration in May 2017. A few months later, on

      December 4, 2017, the State filed a notice of probation violation, alleging that

      Schmidt had violated his probation by failing to report for scheduled probation

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018   Page 2 of 7
      appointments as directed on November 21 and November 30, 2017. Thereafter,

      the trial court held a probation revocation hearing. During the hearing, the

      State presented testimony from Schmidt’s probation officer, Cody Tillison

      (“Probation Officer Tillison”), who was responsible for supervising moderate to

      high-risk probationers. Probation Officer Tillison testified that Schmidt was

      scheduled to appear at his probation appointment on November 21, 2017, but

      he failed to appear. On November 22, Probation Officer Tillison mailed

      Schmidt a letter at the P.O. box address that Schmidt had provided to the

      probation department. The letter notified Schmidt that he had failed to report

      and that his next scheduled appointment was set for November 30. Probation

      Officer Tillison testified that Schmidt, however, did not report for the

      November 30th appointment. Additionally, Probation Officer Tillison testified

      that Schmidt had also failed to report for an appointment in August but that no

      violation was filed for this August appointment.


[5]   Schmidt testified and offered reasons why he had missed the appointments. He

      testified that he knew he had an appointment on November 21 and stated that

      he did not attend it because he went the funeral of his grandmother who had

      died on November 17. He testified that he called Probation Officer Tillison on

      the day of the funeral, November 21, and left a voicemail for the probation

      officer. As for the November 30 appointment, Schmidt testified that he did not

      have a key to access the P.O. box and did not regularly check it and that, as a

      result, he did not get the letter until after the appointment had passed. Schmidt




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018   Page 3 of 7
      also called his father as a witness, and his father tried to take the blame for

      Schmidt’s failure to report.


[6]   The trial court determined that Schmidt had violated his probation by failing to

      report to probation. The trial court revoked a portion of Schmidt’s probation

      and ordered him to serve three years of his previously suspended ten-year

      sentence. When making this determination, the trial court stated the following:


              Mr. Schmidt was on a monthly reporting basis . . . [when] he
              failed to report to his probation on November 21st. The Court is
              not unsympathetic to the fact that he was at a funeral for his
              grandmother. If it was left just to that, then this might be a little
              more complicated from an adjudication stand point, however he
              was given another date for November 30th[,] and he failed to
              report to that. So the Court does find that the State has proven
              by a preponderance of the evidence that he has violated his
              probation. With regards to [the] post office box, him not having
              a key, he is on probation for a major felony, I mean that you are
              going to give an address to probation, it better be one that you
              are going to be able to get mail at. So, one can only assume that
              he was either anticipating receiving mail there or would make the
              necessary arrangements to receive mail there, if that was not
              done, it is on Mr. Schmidt. Probation, Mr. Tillison probably has
              over two hundred and fifty people he is supervising, he can’t hold
              their hand. He can only take the information that is given to him
              and that is the information he as to go with. That is the of [sic]
              Mr. Schmidt to provide him with a good address, so therefore the
              Court does find the State has proven beyond a preponderance of
              the evidence that he has violated his probation. As to the
              disposition, the Court looks to Mr. Schmidt’s prior criminal
              history as an aggravating factor and [he] has a juvenile
              delinquency for three separate Auto Thefts, which he spent ten
              months at the boys school, he has a Theft from Rush County,
              a[n] Auto Theft from Franklin County. He was on probation for

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018   Page 4 of 7
              Arson, as a major felony, as a Class B felony. In looking at the
              probable cause affidavit, there w[ere] two separate fires set in this
              matter intentionally, one to a garage, one to what seems to be, it
              says a trailer and I’m assuming a mobile home, those were
              intentional. Mr. Schmidt pled guilty to the Arson, once again it
              is a major, major felony, when you talk about the locations of the
              fires, it’s a residential area and you are putting many individuals
              at risk. This was a very serious offense. The Court does consider
              the fact that Mr. Schmidt was employed. The Court also
              considers the fact [that] Mr. Schmidt has not taken responsibility
              for it . . . He is twenty-three years old, this is his fault. Basing all
              of the aggravators and mitigating factors, based on the fact that
              this is a major felony, the Court does find a reasonable sentence
              to be to revoke[] three years of his suspended sentence . . . And
              just for the record, . . . the other thing the Court did consider as
              an aggravating factor, he failed to report in August as well and
              there was no violation filed, but this would be his second missed
              appointment in six months, so just in a six-month time period, he
              has missed one[-]third of his probation appointments.


      (Tr. 18-19). Schmidt now appeals.


                                                  Decision
[7]   Schmidt does not challenge the trial court’s determination that he violated

      probation. Instead, he argues that the trial court abused its discretion by

      ordering him to serve three years of his previously suspended ten-year sentence.

      We disagree.


[8]   “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). The trial court determines the conditions of probation and may revoke


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018       Page 5 of 7
      probation if the conditions are violated. Id.; see also IND. CODE § 35-38-2-3(a).

      Indeed, violation of a single condition of probation is sufficient to revoke

      probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Upon

      determining that a probationer has violated a condition of probation, the trial

      court may “[o]rder 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). “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, 878 N.E.2d at 188. “If this discretion were not given to trial courts and

      sentences were scrutinized too severely on appeal, trial judges might be less

      inclined to order probation to future defendants.” Id. As a result, we review a

      trial court’s sentencing decision from a probation revocation for an abuse of

      discretion. Id. (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005),

      trans. denied). An abuse of discretion occurs where the decision is clearly

      against the logic and effect of the facts and circumstances. Id.


[9]   While grace and leniency are a part of the administration of justice, Schmidt’s

      argument would carry more weight if this conviction involved a less serious

      offense. However, the record reveals that the trial court had a sufficient basis

      for its decision to order Schmidt to serve three years of his previously suspended

      ten-year sentence in the DOC. Most significantly, Schmidt received

      tremendous leniency when the trial court accepted his guilty plea to the one

      count of Class B felony arson and imposed a sentence according to his plea

      agreement that allowed him to serve half of his twenty-year sentence on


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018   Page 6 of 7
       probation. Schmidt, however, squandered this opportunity when he failed to

       comply with the requirements of probation within the first few months of

       probation. Based on the record before us, we conclude that the trial court did

       not abuse its discretion by ordering Schmidt to serve less than one-third of his

       previously suspended sentence. For the foregoing reasons, we affirm the trial

       court’s revocation of Schmidt’s probation.


[10]   Affirmed.1


       Vaidik, C.J., and Barnes, Sr.J., concur.




       1
         We reject Schmidt’s reliance on Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016), as support for his
       argument that the trial court abused its discretion when it ordered him to serve of a portion of his suspended
       sentence. In Johnson, the defendant received a seven-year executed sentence on home detention through
       community corrections and a four-year suspended sentence to probation. The defendant had limited
       intellectual ability, difficulty understanding the conditions of his community corrections placement, limited
       resources, and had previously been successful on work release. Based on the defendant’s failure to fully pay
       fees and failure to follow instructions about where and when to be outside his apartment unit, the trial court
       revoked the defendant’s entire executed sentence and ordered him to serve it in the DOC. Citing to the
       various factors in the record, including the defendant’s mental limitations, limited resources, previous success
       on work release, nature of the violation, and severity of the revocation sentence, our Court held that the trial
       court had abused its discretion by finding that the defendant’s violation “warranted serving the entirety of the
       remaining portion of his executed sentence in the DOC.” Johnson, 62 N.E.3d at 1231. Here, unlike Johnson,
       the trial court did not order Schmidt to serve the entirety of his suspended ten-year-sentence, and Schmidt
       does not point to anything in the record to indicate that he has limited intellectual ability or that he had
       difficulty understanding that the terms of his probation for his Class B felony arson conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-119 | June 29, 2018                        Page 7 of 7
