MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 19 2018, 8:59 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Smith,                                           July 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1712-CR-2825
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1509-FC-1420



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018           Page 1 of 4
[1]   Timothy Smith appeals the trial court’s order revoking his probation and

      ordering that he serve the balance of his previously-suspended sentence in the

      Department of Correction (DOC). Finding no error, we affirm.


[2]   On December 14, 2015, Smith pleaded guilty to multiple counts of fraud and

      fraud on a financial institution, as well as corrupt business influence and theft.

      On December 28, 2015, the trial court sentenced Smith to an aggregate term of

      six years, fully suspended to probation.


[3]   On September 19, 2016, the probation department filed a notice of probation

      violation, alleging that Smith had failed to timely report to probation, pay

      probation and administrative fees, and maintain employment. At the hearing

      on the notice, Smith admitted to the allegations. The trial court found that

      Smith had violated the conditions of his probation but nevertheless permitted

      Smith to return to probation, adding probation conditions requiring Smith to

      report weekly to probation and to gain employment within thirty days.


[4]   On March 28, 2017, the probation department filed a second notice of

      probation violation, alleging that Smith had failed to timely report to probation,

      pay his probation fees, and gain employment. An amended notice of violation

      was filed on October 30, 2017, adding allegations that Smith had failed to keep

      probation informed of his address and secure a travel permit for out-of-state

      travel, and had committed a new criminal offense.


[5]   The trial court held a hearing on the amended notice of violation on November

      6, 2017. Smith’s probation officer testified that in addition to failing to pay his

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018   Page 2 of 4
      fees, obtain employment, or keep the probation department apprised of his

      address, Smith had traveled to Illinois without permission and was charged

      there with a new criminal offense. The probation officer testified that Smith

      had called her a couple of times, telling her that he was homeless and having

      difficulty finding employment because he did not have a birth certificate and

      had recently been shot. She stated that she would have helped him find

      housing, but he hung up the telephone and she was unable to help. She also

      testified that she had attempted to help him find employment even without a

      birth certificate by getting him an interview at a restaurant, but he failed to

      show up to the interview. Tr. Vol. II p. 24.


[6]   Smith admitted that he traveled to Illinois without permission. He also

      admitted that he did not pay his probation fees, report regularly to probation, or

      find employment. He testified that his sister was no longer helping him

      financially, that he had no means of transportation, and that he could not find

      employment because he had no identification and his jaw had been wired shut.

      The trial court found that Smith violated the conditions of probation, revoked

      probation, and ordered that he serve the balance of the previously-suspended

      sentence. Smith now appeals.


[7]   Smith’s sole argument is that the trial court should not have ordered him to

      serve the entire balance of the previously-suspended sentence. With respect to

      the sanction imposed by the trial court, we note that probation is a matter of

      grace left to the trial court’s discretion rather than a right to which a defendant

      is entitled. E.g., Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018   Page 3 of 4
      court determines the terms and conditions of probation, and the trial court may

      revoke probation if the terms and conditions are violated. E.g., Castillo v. State,

      67 N.E.3d 661, 663-64 (Ind. Ct. App. 2017), trans. denied. A trial court may

      revoke a defendant’s probation for violation of a single condition of his

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


[8]   It is undisputed that Smith violated multiple conditions of probation; indeed, he

      admitted as much at the violation hearing. Smith insists that his violations

      were merely “technical” and, as such, the sanction imposed by the trial court is

      unwarranted. Appellant’s Br. p. 8. Caselaw does not distinguish between

      “technical” and “substantive” violations of probation, nor would such a

      distinction be meaningful. For example, in this case, because Smith so

      frequently failed to report to probation, he had not submitted to a drug screen

      since July 2016—well over a year—meaning that probation had no way of

      knowing whether he was using illegal substances. Moreover, while Smith

      claims to have been dealing with challenging circumstances—claims that are

      supported by no evidence other than his own self-serving testimony—he gave

      his probation officer no opportunity to help him overcome the obstacles he was

      facing. Given that Smith admittedly violated multiple conditions of probation,

      the trial court did not err by revoking probation and ordering that he serve the

      balance of his sentence in the DOC.


[9]   The judgment of the trial court is affirmed.


      May, J., and Robb, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018   Page 4 of 4
