Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                                  FILED
establishing the defense of res judicata,                      Oct 11 2012, 8:32 am
collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




  ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

  JEFFREY E. STRATMAN                                 GREGORY F. ZOELLER
  Aurora, Indiana                                     Attorney General of Indiana

                                                      RICHARD C. WEBSTER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                 IN THE
                       COURT OF APPEALS OF INDIANA

  DANIEL CRABTREE,                             )
                                               )
         Appellant,                            )
                                               )
                 vs.                           )      No. 15A01-1203-CR-131
                                               )
  STATE OF INDIANA,                            )
                                               )
         Appellee.                             )


                       APPEAL FROM THE DEARBORN SUPERIOR COURT
                            The Honorable Sally A. Blankenship, Judge
                                 Cause No. 15D02-0710-FA-005



                                           October 11, 2012

                   MEMORANDUM DECISION – NOT FOR PUBLICATION

  MATHIAS, Judge
       Danny Crabtree was convicted in Dearborn Superior Court of Class C felony child

molesting and ordered to serve four years, with the entirety of that sentence suspended to

probation. His probation was revoked after he failed to attend two sessions of a court-

ordered sex offender treatment program. The trial court ordered him to serve two years

and 180 days of his previously suspended sentence and extended his probation upon

release by two years. Crabtree appeals his sentence.

       We affirm.

                             Facts and Procedural History

       On October 1, 2007, Crabtree was indicted for Class A felony child molesting.

Crabtree was accused of molesting his five-year-old daughter. On September 2, 2010, he

agreed to plead guilty to Class C felony child molesting. In the plea agreement, the State

recommended that Crabtree receive a four-year sentence, with the entire sentence

suspended to reporting probation.

       The trial court accepted Crabtree’s guilty plea and imposed the sentence

recommended by the State in the plea agreement. As a condition of his probation,

Crabtree was ordered to participate in and successfully complete a court-approved sex

offender treatment program. He was further ordered not to miss any treatment sessions

“without the prior approval of [his] probation officer and the treatment provider involved,

or a doctor’s excuse.” Appellant’s App. p. 71.

       On October 14, 2011, the State filed a petition to revoke Crabtree’s probation

because he had failed to attend two sessions of his sex offender treatment program. At

the November 22, 2011 revocation hearing, Crabtree admitted that he had failed to attend

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the court-ordered sessions and failed to contact his probation officer to explain his

absence. The trial court revoked Crabtree’s probation, and a separate sentencing hearing

was held on December 20, 2011. Shortly thereafter, the trial court ordered Crabtree to

serve two years and 180 days of his previously suspended sentence in the Department of

Correction. The court also extended Crabtree’s probationary period by an additional two

years upon his release from incarceration.

      Finally, the trial court observed that Crabtree was living with minor children prior

to his incarceration and that he desired to return to that living arrangement. The court

noted that his “non-compliance with the treatment program is a serious violation and that

[Crabtree] is a risk to children.” Appellant’s App. p. 52. Therefore, the trial court

modified Crabtree’s conditions of probation to include “no contact with any children

under the age of eighteen [] and that all prior exceptions for contact with children be

eliminated until further order of the Court.” Id. at 53. Crabtree now appeals.

                                Discussion and Decision

      A defendant is not entitled to serve a sentence in a probation program; rather, such

placement is a “matter of grace” and a “conditional liberty that is a favor, not a right.”

Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). The trial court may revoke a

defendant’s probation if the conditions are violated. Ind. Code § 35-38-2-3. When a trial

court has exercised its grace by ordering probation rather than incarceration, the trial

court should have considerable leeway in deciding how to proceed when revoking the

defendant’s probation.     See Prewitt v. State, 878 N.E.2d 184. 188 (Ind. 2007).

“Accordingly, a trial court’s sentencing decisions for probation violations are reviewable

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using the abuse of discretion standard. An abuse of discretion occurs where the decision

is clearly against the logic and effect of the facts and circumstances.” Id.

       Pursuant to Indiana Code section 35-38-2-3(h), after finding that a person has

violated a condition of his probation, the trial court may:

       (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.

       Pursuant to the State’s recommendation in the plea agreement, Crabtree was

sentenced to the advisory term of four years for his Class C felony child molesting

conviction, and the entire four-year sentence was suspended to reporting probation. As a

condition of his probation, Crabtree was ordered to participate in and successfully

complete a court-approved sex offender treatment program. He was further ordered not

to miss any treatment sessions “without the prior approval of [his] probation officer and

the treatment provider involved, or a doctor’s excuse.” Appellant’s App. p. 71.

       At the probation revocation hearing, Crabtree admitted that he failed to attend two

required sex offender treatment program sessions without prior approval from his

probation officer. Crabtree also admitted that he failed to report his absence to his

probation officer and/or the treating provider. Crabtree had also missed five additional

sessions, but those absences were excused. In all, Crabtree accumulated seven absences

from the program in ten months. Ex. Vol., State’s Ex. 1.


                                              4
       By failing to attend the treatment program sessions and report his absence to his

probation officer, Crabtree has demonstrated that he is unable to abide by the terms of his

probation. Moreover, his failure to attend sex offender treatment program sessions is

troubling given the nature of his conviction. For all of these reasons, we conclude that

the trial court acted within its discretion when it ordered Crabtree to serve two years and

180 days of his previously suspended sentence in the Department of Correction and

extended his probation by an additional two years upon release from incarceration.

       Finally, Crabtree argues that the trial court abused its discretion by modifying the

conditions of his probation, which will prevent him from having any contact with his

minor children after he is released from incarceration.        Crabtree was convicted of

molesting his own daughter, with whom he is ordered to have no contact. On the record

before us, and particularly given Crabtree’s willful failure to attend his court-ordered sex

offender treatment, we conclude that the trial court acted within its discretion when it

decided to restrict Crabtree’s access to his other minor children “until further order of the

Court.” Appellant’s App. p. 53.

       Affirmed.

VAIDIK, J., and BARNES, J., concur.




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