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
establishing the defense of res judicata,                    Dec 30 2013, 8:56 am
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                          GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RICO NATHANIEL MORST,                           )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 84A01-1305-CR-226
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable David R. Bolk, Judge
                            Cause No. 84D03-1112-FD-3906



                                     December 30, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Rico Nathaniel Morst appeals the revocation of his probation. Morst raises one

issue, which we revise and restate as whether the trial court abused its discretion in

ordering that Morst serve his previously suspended sentence. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On December 15, 2011, the State charged Morst with Count I, resisting law

enforcement as a class D felony; Count II, receiving stolen auto parts as a class D felony;

and Count III, receiving stolen property as a class D felony under cause number 84D03-

1112-FD-3906 (“Cause No. 3906”). On February 27, 2012, Morst pled guilty to Counts I

and III. The court sentenced Morst to two years for each count with thirty-six days

executed and the balance suspended to probation and ordered that the sentences be served

concurrent with each other.

       On April 10, 2012, the State filed a notice of probation violation alleging that

Morst failed to report to Vigo County Adult Probation to be placed under supervision.

On April 17, 2012, the court scheduled a hearing for May 7, 2012, and directed the clerk

to issue a subpoena for Morst’s appearance at the hearing. On April 30, 2012, the Sheriff

filed a return indicating that Morst was served with the subpoena personally on April 28,

2012. On May 7, 2012, Morst failed to appear, and the court ordered an arrest warrant.

       On June 4, 2012, the court held a hearing at which Morst appeared in person while

in custody. The court ordered Morst to appear at a July 19, 2012 probation revocation

hearing and that Vigo County Community Corrections evaluate Morst for placement in

the work release program and indigency program.



                                            2
       On June 5, 2012, the State filed a second notice of probation violation alleging that

Morst failed to report to the probation office and was charged with theft as a class D

felony and receiving stolen property as a class D felony under cause number 840D30-

1206-FD-1816 (“Cause No. 1816”). On July 19, 2012, Morst pled guilty to theft as a

class D felony in Cause No. 1816 and agreed to admit to the pending probation violations

under Cause No. 3906 and accept the sentencing recommendations of the State. The plea

indicated that the State “will recommend that [Morst] be restored to formal probation

under the original terms and conditions imposed by the Court” in Cause No. 3906.

Appellant’s Appendix at 56. On July 24, 2012, the court accepted Morst’s guilty plea

under Cause No. 1816 and sentenced him to 180 days executed as a direct commitment to

the Vigo County Work Release Program. The court also accepted Morst’s admission

under Cause No. 3906 and restored him to probation.

       On November 20, 2012, the State filed a third notice of probation violation

alleging that Morst failed to report to the probation office as ordered and failed to keep

the probation office advised of his address. On February 5, 2013, the State filed a fourth

notice of probation violation alleging that Morst failed to report to probation, failed to

keep the probation office informed of his address, and was charged with resisting law

enforcement as a class D felony and resisting law enforcement as a class A misdemeanor

under cause number 84D03-1302-FD-328.

       On March 28, 2013, the court held a probation revocation hearing. Steven Bell, a

probation officer, testified that Morst was to report to him on October 10, 2012, but failed

to do so. Bell also testified that a letter was sent to Morst but the letter was returned to

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Bell indicating that Morst did not live at that address. The court found that Morst

violated the terms of his probation by failing to report to probation when ordered and by

failing to keep the probation office notified of his new address.1

        On May 2, 2013, the court held a dispositional hearing. Morst testified that he

completed the ninth grade, that he had trouble in school, that he has never held down a

job, that he had to walk to see his probation officer which took him about fifteen to

twenty minutes, and that he had trouble reporting because he had to walk. On cross-

examination, when asked by the State what kept him from walking to the probation

department, Morst stated that it was raining. The court ordered that Morst serve his

previously suspended sentence. The court stated:

                I mean I, I don’t know what option I have Mr. Morst. I mean it
        seems to me that you’ve – this is – you’ve been charged for a third crime,
        you were given probation, you didn’t do anything, you didn’t report to
        probation, and the only way that you got yourself to this courtroom was by
        being arrested on a new offense. So your whereabouts were unknown for at
        least five (5) months since your date of sentencing on the last one. Your . .
        . P.S.I. is not anything to hang your hat on. Under the new system you’ve,
        you’ve got a very high risk, which I, I don’t see very many of those, and I
        mean, and it’s basically because your attitude. I mean, your attitude as
        reflected in here says you just want to get high and see whatever happens,
        and I mean I understand you may want to go through life like that, but
        you’re gonna end up in here, you’re gonna do life on the installment plan.
        You’re, you’re starting out that way sir. I mean I don’t think the Court has
        much choice at all, other than to sentence you to time to the balance of your
        previously suspended sentence [in Cause No. 3906].

Transcript at 23-24.




        1
         The court stated that “[t]here was a second amended filed that, that made the allegation of the
new arrest. I am not including that in my finding.” Transcript at 10.
                                                   4
                                      DISCUSSION

       The issue is whether the trial court abused its discretion in ordering that Morst

serve his previously suspended sentence.         Morst argues that “[g]iven the facts and

circumstances here, the trial court abused its discretion in revoking probation.”

Appellant’s Brief at 3. Morst concedes that this was his “second violation” but argues

that the violation was “for failing to report and failing to update his address.” Id. Morst

argues that he did not have transportation, had to walk to report to probation, has a ninth

grade education and a learning disability, and struggles to hold on to a job. Morst

concludes that “[a]s the violations this time were technical in nature, the trial court

abused its discretion in revoking probation.” Id. The State argues that Morst incorrectly

describes his refusal to comply with the reporting requirements of his probation as a

technical violation unworthy of revocation. The State also argues that Morst’s excuse for

not reporting was so weak as to leave the court with no other conclusion but that Morst

was not inclined to make even a minimal effort to comply with the terms of his probation.

       Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial

court finds a probation violation and provides:

       If the court finds that the person has violated a condition at any time before
       termination of the period, and the petition to revoke is filed within the
       probationary period, the court may impose one (1) or more of the following
       sanctions:

              (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.

                                             5
              (3)    Order execution of all or part of the sentence that was
                     suspended at the time of initial sentencing.

This provision permits judges to sentence offenders using any one or any combination of

the enumerated options. Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).

       The Indiana Supreme Court has held that a trial court’s sentencing decisions for

probation violations are reviewable for abuse of discretion. Id. at 188. The Court

explained that “[o]nce a trial court has exercised its grace by ordering probation rather

than incarceration, the judge should have considerable leeway in deciding how to

proceed” and that “[i]f this discretion were not afforded to trial courts and sentences were

scrutinized too severely on appeal, trial judges might be less inclined to order probation

to future defendants.” Id. An abuse of discretion occurs where the decision is clearly

against the logic and effect of the facts and circumstances. Id. (citation omitted). As

long as the proper procedures have been followed in conducting a probation revocation

hearing, “the trial court may order execution of a suspended sentence upon a finding of a

violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212

(Ind. Ct. App. 1999).

       The record reveals that Morst failed to appear for a probation revocation hearing

in May 2012 after being personally served with a subpoena. In July 2012, Morst pled

guilty to theft as a class D felony in Cause No. 1816 and agreed to admit to the pending

probation violations under Cause No. 3906. With respect to the current violation, the

record reveals that Morst was to report on October 10, 2012, but failed to do so and failed

to keep the probation office notified of his new address. When asked by the State what

kept him from walking to the probation department, Morst stated that it was raining.
                                        6
Morst did not present evidence establishing that he had health issues or was unable to

walk to the probation department. According to the presentence investigation report

(“PSI”), Morst has three prior felony convictions, one felony and one misdemeanor

pending in Vigo County, and a misdemeanor pending in Marion County. The PSI also

indicates that Morst is in the “very high” risk to reoffend category.             Appellant’s

Appendix at 95.

       Given the circumstances as set forth above and in the record, we cannot say that

the court abused its discretion in ordering Morst to serve his previously suspended

sentence. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008) (holding that

the trial court did not abuse its discretion in reinstating the probationer’s entire previously

suspended sentence of one year), trans. denied.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.

       Affirmed.

ROBB, C.J., and BARNES, J., concur.




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