MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                 Jan 31 2020, 10:17 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Catherine Brizzi
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin David Stein,                                    January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1841
        v.                                               Appeal from the Fountain Circuit
                                                         Court
State of Indiana,                                        The Honorable Stephanie S.
Appellee-Plaintiff                                       Campbell, Judge
                                                         Trial Court Cause No.
                                                         23C01-1605-F6-163



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020           Page 1 of 5
                                       Statement of the Case
[1]   Benjamin Stein (“Stein”) appeals the trial court’s judgment ordering him to

      serve the balance of his previously suspended sentence after he violated

      probation. Finding no abuse of the trial court’s discretion, we affirm the trial

      court’s judgment.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion in ordering Stein to
              serve the balance of his previous suspended sentence after he
              violated probation.


                                                     Facts
[3]   In October 2016, Stein pled guilty to two counts of Level 6 felony theft. The

      following month, the trial court sentenced him to 1190 days of probation. One

      of the terms of his probation was that he not violate any laws.


[4]   In September 2017, the probation department filed a notice of violation alleging

      that Stein had violated probation by committing the offenses of Class A

      misdemeanor driving while suspended and Class B misdemeanor leaving the

      scene of an accident. Stein pled guilty to those offenses and was sentenced to

      one year of probation. The probation department dismissed the notice of

      violation.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020   Page 2 of 5
[5]   In March 2019, the probation department filed a second notice of violation

      alleging that Stein had violated his probation by committing the offenses of

      residential entry and criminal trespass. Stein pled guilty to Class A

      misdemeanor criminal trespass in that case.


[6]   At a subsequent probation revocation hearing, Stein admitted that he had

      violated probation when he committed the offense of criminal trespass. He

      asked the trial court to release him back to probation.


[7]   The trial court pointed out that this was Stein’s second probation violation and

      told Stein that it was “just not understanding why you wouldn’t have taken this

      very seriously.” (Tr at 23). The trial court ordered Stein to serve the balance of

      his suspended sentence and explained its decision as follows:


              You made a deal with this Court that you would behave. You
              had the one that you were convicted of, now another that you are
              convicted of. All right? And you knew what the consequences
              were. You absolutely – you know the ropes. You understand
              how this works. You want to go out and keep committing crimes
              then this is what’s going to happen. A deal is a deal. I say it
              every day, all day.


      (Tr. 24). Stein now appeals the trial court’s order that he serve the balance of

      his suspended sentence.


                                                  Decision
[8]   Stein argues that the trial court abused its discretion in ordering him to serve the

      balance of his previously suspended sentence after he violated probation.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020   Page 3 of 5
      “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). Once a trial court has exercised its grace, it has considerable leeway in

      deciding how to proceed when the conditions of probation are violated. Id. If

      this discretion were not given to trial courts and sentences were scrutinized too

      severely on appeal, trial courts might be less inclined to order probation. Id.

      Accordingly, a trial court’s sentencing decision for a probation violation is

      reviewable for an abuse of discretion. Id. An abuse of discretion occurs when

      the trial court’s decision is clearly against the logic and effect of the facts and

      circumstances. Id. If a trial court finds that a person has violated his probation

      before termination of the probationary period, the court may order execution of

      all or part of the sentence that was suspended at the time of the initial

      sentencing. IND. CODE § 35-38-2-3.


[9]   Here, Stein argues that the trial court abused its discretion in ordering him to

      serve the balance of his previously suspended sentence. However, the trial

      court pointed out that although Stein had agreed to commit no criminal

      offenses while on probation, Stein had twice committed additional offenses. In

      addition, Stein knew the potential consequences for committing those

      additional offenses. Based on these facts, the trial court’s decision to order

      Stein to serve the balance of his previously suspended sentence is not clearly

      against the logic and effect of the facts and circumstances before it, and the trial

      court did not abuse its discretion.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020   Page 4 of 5
[10]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1841 | January 31, 2020   Page 5 of 5
