MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
court except for the purpose of establishing                            Jun 25 2020, 9:18 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
Ana M. Quirk                                             Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher W. Lopilato,                                 June 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2747
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Plaintiff.                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1211-FB-16



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020                    Page 1 of 5
                                       Statement of the Case
[1]   Christopher W. Lopilato appeals his sentence following the trial court’s

      revocation of his probation. Lopilato presents a single issue for our review,

      namely, whether the trial court abused its discretion when it ordered him to

      serve the balance of his previously suspended sentence in the Department of

      Correction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 26, 2013, Lopilato pleaded guilty to dealing in a controlled

      substance, as a Class B felony, in Cause Number 18C05-1211-FB-16 (“FB-16”).

      In exchange for his plea, the State dismissed five additional charges. The trial

      court accepted Lopilato’s guilty plea and sentenced him to ten years, with seven

      years executed in the Department of Correction and three years suspended to

      probation.


[4]   In early 2015, Lopilato completed a therapeutic community program, and he

      moved the court to modify his sentence. On March 3, the court granted

      Lopilato’s motion and modified his sentence to ten years, with five years

      executed and five years suspended to probation. The court then found that

      Lopilato had completed the executed portion of his sentence and released him

      to probation.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020   Page 2 of 5
[5]   In early 2017, while he was on probation, the State charged Lopilato with

      several drug-related offenses in Cause Number 48C03-1701-F3-99 (“F3-99”).

      On June 13, the State filed a petition to revoke Lopilato’s placement on

      probation in FB-16, in which the State alleged that Lopilato had violated the

      terms of his placement when he committed the offenses in F3-99. Thereafter,

      on November 6, Lopilato pleaded guilty in F3-99 to dealing in a controlled

      substance, as a Level 3 felony; dealing in a controlled substance, as a Level 5

      felony; two counts of possession of a controlled substance, as Class A

      misdemeanors; and possession of marijuana, as a Class B misdemeanor.


[6]   On July 23, 2019, the trial court held a hearing on the State’s petition to revoke

      Lopilato’s placement on probation in FB-16. At that hearing, Lopilato

      admitted to the alleged violations. Accordingly, the court revoked his

      placement on probation and ordered him to serve the balance of his previously

      suspended sentence in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[7]   Lopilato appeals the trial court’s order that he serve the balance of his

      previously suspended sentence. Probation is a matter of grace left to trial court

      discretion. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding

      that a defendant has violated a condition of his 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) (2019). We review the trial

      court’s sentencing decision following the revocation of probation for an abuse

      of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020   Page 3 of 5
      of discretion occurs “only where the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances” before the court. Robinson v.

      State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

      evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

      40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

      trial court’s judgment to determine if there was substantial evidence of

      probative value to support the court’s ruling. Id.


[8]   On appeal, Lopilato asserts that the trial court abused its discretion when it

      ordered him to serve the balance of his previously suspended sentence because

      he “freely admitted” to the allegations contained in the petition for revocation,

      he had “substantially complied” with his previous sentence, and he had

      completed both a therapeutic community program while incarcerated and “an

      additional substance abuse evaluation” while the petition to revoke his

      probation was pending. Appellant’s Br. at 10, 11. However, Lopilato’s

      contentions on appeal amount to a request that we reweigh the evidence, which

      we cannot do.


[9]   The trial court’s judgment is supported by substantial evidence and was within

      the court’s sound discretion. Following Lopilato’s completion of the

      therapeutic community program, the trial court reduced the executed portion of

      his sentence from seven years to five years and released him to probation.

      However, while on probation, Lopilato engaged in additional criminal activity,

      which resulted in convictions for several drug-related offenses. Further, while

      Lopilato has participated in programs to overcome his substance abuse issues,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020   Page 4 of 5
       he continues to deal drugs. Accordingly, the court’s order that he serve the

       balance of his previously suspended sentence is supported by the record and is

       well within the trial court’s discretion. We therefore affirm the court’s

       judgment.


[10]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020   Page 5 of 5
