MEMORANDUM DECISION
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, collateral                                    FILED
estoppel, or the law of the case.                                     Jun 17 2020, 10:16 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Brandon E. Murphy                                        Tina L. Mann
Cannon Burns & Murphy, LLC                               Deputy Attorney General
Muncie, Indiana                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard N. Smith, Jr.,                                   June 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-199
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         Trial Court Cause No.
                                                         18C02-1308-FA-13



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020                   Page 1 of 7
                                          Case Summary
[1]   After being convicted of Class A felony dealing in cocaine, Richard Smith, Jr.

      was sentenced to a twenty-year term of incarceration in the Department of

      Correction (“DOC”). Smith was placed in an intensive therapeutic program

      while incarcerated and, upon his successful completion of the program, was

      granted a sentence modification. The trial court released Smith from

      incarceration, suspended the remaining twelve years and one hundred two days

      of his sentence, and placed Smith on probation. Despite receiving this leniency

      from the trial court, Smith violated the terms of his probation within months of

      being released and placed on probation. The trial court subsequently revoked

      Smith’s probation and ordered that he serve the entire suspended sentence in

      the DOC. Smith contends that the trial court abused its discretion in revoking

      his entire suspended sentence. We affirm.



                            Facts and Procedural History
[2]   On August 6, 2013, Smith was charged with two counts of Class A felony

      dealing in cocaine, Class A felony possession of cocaine, Class D felony

      maintaining a common nuisance, and Class A misdemeanor possession of

      marijuana. On April 21, 2016, as part of a negotiated plea agreement, Smith

      pled guilty to one count of Class A felony dealing in cocaine and agreed to a

      twenty-year fixed sentence. In exchange for Smith’s guilty plea, the State

      agreed to dismiss all other charges. The parties agreed that Smith was “an

      appropriate candidate for Purposeful Incarceration through the [DOC’s]

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020   Page 2 of 7
      Therapeutic Community Program for severe substance abuse issues” and that

      “if Court accepts this Plea Agreement, the Court shall recommend that the

      [DOC] place [Smith] in this program.” Appellant’s App. Vol. II p. 149. The

      trial court accepted the plea agreement and sentenced Smith in accordance with

      its terms.


[3]   Smith successfully completed the intensive therapeutic program, and on June 8,

      2017, the trial court modified Smith’s sentence, ordering as follows:


              Therefore, as to Count 1, Dealing in Cocaine, a Class A felony,
              the remainder of [Smith’s] twenty (20) year executed sentence
              shall be suspended and [Smith] shall be placed on supervised
              probation for a period of twelve (12) years and one hundred two
              (102) days.… Further, if [Smith] successfully completes three (3)
              years of the supervised probation, the Probation Department may
              file a petition requesting [Smith] be released from probation.


      Appellant’s App. Vol. II p. 204.


[4]   On December 14, 2017, the State filed a petition to revoke Smith’s probation

      after Smith was charged with five new criminal offenses: two counts of Level 4

      felony dealing in narcotic drug, Level 6 felony maintaining a common

      nuisance, and two counts of Level 6 felony resisting law enforcement. After

      pleading guilty to one count of Level 6 felony resisting law enforcement in his

      new case, Smith admitted to the probation violation in this case. The trial court

      revoked Smith’s probation and ordered that he serve the entirety of his

      previously-suspended sentence in the DOC.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020   Page 3 of 7
                                 Discussion and Decision
[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).


               The trial court determines the conditions of probation and may
               revoke probation if the conditions are violated. Once a trial court
               has exercised its grace by ordering probation rather than
               incarceration, the judge should have considerable leeway in
               deciding how to proceed. If 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. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable 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. (internal citations omitted). In challenging the revocation of his probation,

      Smith contends that the trial court abused its discretion in revoking his entire

      suspended sentence. Specifically, he argues that the sanction imposed for his

      violation “was unduly harsh and should be revised in light of [Smith’s] ability

      to make use of drug treatment and rehabilitation.” Appellant’s Br. p. 8.


[6]   In the underlying criminal case, Smith was convicted of Class A felony dealing

      in cocaine and sentenced to twenty years. After Smith successfully completed

      an intensive therapeutic program aimed at addressing his substance-abuse

      issues, Smith was given a chance to show that he was rehabilitated and could

      live a crime-free life in the community. However, within months, Smith

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020   Page 4 of 7
      violated the terms of his probation. After Smith admitted to violating the terms

      of his probation, the trial court revoked Smith’s entire suspended sentence. In

      doing so, the trial court stated the following:


              Mr. Smith, I did tell you at the time that I modified your
              sentence that that was your one chance. And when I, when you
              got sentenced on the twenty (20) year sentence with therapeutic
              community, that was the biggest break of your life. I mean that’s
              handing that to you on a silver platter. And you did therapeutic
              community and then you blew it.… I mean, you know, the
              second biggest chance of your life is when then I modify your
              sentence and you don’t have to do twenty (20) years in prison.
              You have to obey the law. You have to follow the rules of
              probation. And you have to take advantage of what you learned
              while you were in therapeutic community. And you didn’t do
              that. And so from my perceptive, [the State] is right that you
              earned the revocation.


      Tr. Vol. II p. 11.


[7]   In arguing that imposing his entire suspended sentence was unduly harsh,

      Smith claims that “participation in that program and his successful completion

      of that program show that he is capable of defeating his drug addiction and

      living a law-abiding life.” Appellant’s Br. p. 9. However, Smith’s alleged

      participation in drug-related criminal behavior within months of having his

      sentence modified and being placed on probation suggests otherwise. We agree

      with the State that Smith’s actions once being placed on probation indicate that

      his successful completion of the therapeutic program “wholly failed to




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020   Page 5 of 7
      rehabilitate” him and “his own conduct demonstrated that it had not made him

      capable of living a law-abiding life.”1 Appellee’s Br. p. 11.


[8]   Smith also claims that the trial court should have recognized his “prior

      demonstrated ability to comply with the recommendations of the court in

      imposing an appropriate sanction.” Appellant’s Br. p. 10. Contrary to this

      claim, Smith has not demonstrated an ability to comply with court orders or

      recommendations and he has failed to modify his behavior after receiving prior

      awards of leniency. Smith has an extensive criminal history dating back to

      1994, which includes seven prior felony convictions and three prior

      misdemeanor convictions. In addition, prior to being placed on probation in

      this case, Smith had been placed on probation five times and had had his

      probation violated in four of those five cases. We agree with the State that

      “committing crimes while on probation after only six months of participation is

      not a demonstration of [Smith’s] ability to comply with the recommendations

      of the court, which would have included the rules and conditions of probation.”

      Appellee’s Br. p. 11. Smith’s behavior indicates that he is either not capable of

      or interested in living a law-abiding life. Rather, his behavior demonstrates a

      disregard for the laws of this state and the restrictions placed on him by the trial

      court.




      1
        Furthermore, to the extent that Smith claims that the trial court abused its discretion by relying on his
      successful participation in and completion of the therapeutic program as a reason to revoke the remainder of
      his suspended sentence, the record reveals that the trial court did not do so. The trial court merely noted that
      Smith had failed to take advantage of the tools learned during his participation in the therapeutic program.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020                         Page 6 of 7
[9]    The record reveals that Smith was granted an opportunity to serve the majority

       of his twenty-year sentence on probation after completing an intensive

       therapeutic program. By his own choice, Smith did not take advantage of this

       opportunity. As such, despite Smith’s contention to the contrary, we conclude

       that the trial court did not abuse its discretion in revoking the remainder of

       Smith’s suspended sentence.


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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-199 | June 17, 2020   Page 7 of 7
