MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Jan 19 2017, 8:23 am
regarded as precedent or cited before any
                                                                    CLERK
court except for the purpose of establishing                    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
Amanda O. Blackketter                                    Curtis T. Hill, Jr.
Blackketter Law, LLC                                     Attorney General of Indiana
Shelbyville, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rebecca Michelle Mason,                                  January 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1606-CR-1370
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable David N. Riggins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         73D02-1408-F6-33



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 1 of 8
                                       Statement of the Case
[1]   Rebecca Mason (“Mason”) appeals the trial court’s order revoking her

      probation and ordering her to serve her previously suspended sentence

      following her admission that she committed a new offense. Mason argues, and

      the State concedes, that the trial court’s probation revocation order contains a

      scrivener’s error that needs to be corrected on remand. Additionally, Mason

      contends that the trial court abused its discretion by ordering her to serve the

      remainder of her previously suspended sentence. Concluding that the trial

      court did not abuse its discretion by ordering Mason to serve her previously

      suspended sentence, we affirm the trial court’s revocation of Mason’s probation

      and remand for correction of the scrivener’s error.


[2]   We affirm and remand.


                                                     Issues
              1. Whether the trial court’s order should be remanded to correct
              a scrivener’s error.

              2. Whether the trial court abused its discretion by ordering
              Mason to serve her previously suspended sentence.


                                                     Facts
[3]   In August 2014, Mason pled guilty to Level 6 felony operating a vehicle while

      intoxicated (“OWVI”) with a prior conviction. The trial court imposed a

      sentence of 540 days, with thirty (30) days executed and 510 days suspended to

      probation. The trial court also suspended Mason’s driver’s license for 365 days.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 2 of 8
[4]   In March 2015, the State filed a notice of probation violation, alleging that

      Mason had violated her probation by, among other things, consuming alcohol.

      In September 2015, Mason admitted to the violation. The trial court ordered

      that eighty-eight (88) days of Mason’s previously suspended sentence were to be

      executed, with credit for time served, and it continued her on probation.


[5]   Thereafter, on May 11, 2016, the State filed a second notice of probation

      violation, alleging that Mason had violated her probation by being arrested and

      charged, in Johnson County, with Level 6 felony operating a vehicle after being

      an habitual traffic violator (“HTV”).1 Approximately one week later, the State

      filed an addendum to the revocation petition, alleging that Mason had violated

      her probation by consuming alcohol as evidenced by a Breathalyzer test result

      of 0.013. Subsequently, on June 1, 2016, the State filed a second addendum to

      the revocation petition, alleging that Mason had also violated probation by

      committing the offense of dealing a controlled substance.


[6]   The trial court held a probation revocation hearing on June 9, 2016. During the

      hearing, Mason admitted that she had violated probation as alleged in the

      State’s May 11, 2016 petition; specifically, she admitted that she had committed

      the offense of Level 6 felony operating a vehicle after being an HTV in Johnson




      1
       The May 11, 2016 chronological case summary (“CCS”) entry for this probation revocation petition
      provides that “State files a 2nd Petition To Revoke Probation alleging therein that Def committed the offense
      of OVWI after being habitual traffic violator . . . .” (App. 8) (emphasis added). The State’s probation revocation
      petition, however, clearly alleged otherwise. Specifically, the revocation petition alleged that Mason had
      committed the offense of “OPERATING A VEHICLE AFTER BEHING (sic) HABITUAL TRAFFIC
      VIOLATOR[.]” (App. 46) (capitalization of all letters in original). (App. 46).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017                Page 3 of 8
      County. The trial court then stated that it was finding that she had violated her

      probation based upon her admission that she had committed operating a vehicle

      after being an HTV.2


[7]   The trial court then proceeded to a consideration of the appropriate sanction

      based on that violation. Mason’s counsel questioned her about her first

      probation violation and how it was resolved. Her counsel also asked Mason

      whether she had “been clean” since she had last been in court for her first

      probation violation. (Tr. 21). Mason responded that she “had not drank (sic) a

      drop” since that time. (Tr. 21). The trial court then asked Mason about the

      addendum that alleged that she had consumed alcohol. Mason responded that,

      at the time of the Breathalyzer test, she had been sick for three weeks and had

      taken something but had not consumed alcohol.


[8]   The trial court ordered Mason to serve the remaining 270 days of her previously

      suspended sentence in the Shelby County Jail, applied her applicable credit

      time, and terminated her probation. Mason now appeals.




      2
       The trial court’s June 9, 2016 order and the corresponding CCS entry (dated June 10, 2016), however,
      erroneously indicate that Mason had admitted to committing the offense of “OWVI after being HTV in
      Johnson County.” (App. 11, 15). Additionally, that CCS entry also erroneously indicates that the trial court
      “finds that Defendant violated probation by consuming alcohol while on probation[.]” (App. 11). A review
      of the transcript from the probation revocation hearing indicates that the trial court’s revocation of Mason’s
      probation was based solely upon her admission that she had committed operating a vehicle after being an
      HTV. See Tr. 23 (revealing that trial court stated that it was “not finding she violated probation” by
      consuming alcohol).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017            Page 4 of 8
                                                   Decision
[9]    Mason argues that: (1) the trial court’s probation revocation order contains a

       scrivener’s error; and (2) the trial court abused its discretion by ordering her to

       serve the remainder of her previously suspended sentence. We will address

       each argument in turn.


       1. Scrivener’s Error


[10]   The parties agree that Mason admitted to violating probation based upon her

       commission of the new offense of driving a vehicle after being an HTV. Mason

       contends, and the State concedes, that the trial court’s probation revocation

       order contains a scrivener’s error. Specifically, the trial court’s written

       probation revocation order indicates that Mason admitted to violating her

       probation based on the commission of the offense of “OVWI after being HTV.”

       (App. 15). Because the parties agree, and a review of the record reveals, that

       the revocation of Mason’s probation was based upon her commission driving a

       vehicle after being an HTV, we remand to the trial court with instructions to

       correct this scrivener’s error in its probation revocation order and the

       corresponding entry in the CCS. Additionally, the trial court is instructed to

       correct that same CCS entry to correctly reflect that basis for its revocation of

       Mason’s probation.


       2. Suspended Sentence


[11]   Mason argues that the trial court abused its discretion by ordering her to serve

       her previously suspended sentence.
       Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 5 of 8
[12]   Upon determining that a probationer has violated a condition of probation, the

       trial court may “[o]rder execution of all or part of the sentence that was

       suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).

       “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.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “If this discretion

       were not given to trial courts and sentences were scrutinized too severely on

       appeal, trial judges might be less inclined to order probation to future

       defendants.” Id. As a result, we review a trial court’s sentencing decision from

       a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825

       N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[13]   The record reveals that the trial court had ample basis for its decision to order

       Mason to serve her previously suspended 270-day sentence in the county jail.

       Here, Mason—who was on probation for her original Level 6 felony OVWI

       conviction—was before the trial court on her second probation revocation

       petition. Upon her first revocation petition, she admitted that she had violated

       probation by consuming alcohol, and the trial court ordered her incarcerated for

       eighty-eight days, after which, she was allowed to remain on probation. Then,

       upon this second revocation petition, Mason admitted that she had again

       violated probation, this time by committing the offense of driving a vehicle after

       being an HTV. After ordering Mason to serve the remainder of her previously


       Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 6 of 8
       suspended sentence, the trial court attempted to offer Mason some words of

       encouragement:


               This is a setback for you. It’s not the end though. You can still
               do great things, but you’ve got to get your, your life under
               control. Do you understand that? . . . It’s very chaotic right now,
               and it looks to me like you have several other matters coming up
               that you’re gonna have to deal with.

       (Tr. 27).


[14]   On appeal, Mason contends that the trial court erroneously considered the

       allegations contained in the probation violation addendums when determining

       the sanction for her probation violation. Specifically, she asserts that the trial

       court’s statement that Mason had “several other matters coming up” indicates

       that the trial court considered the other probation violation allegations when

       sentencing her and possibly when revoking her probation. We disagree.


[15]   The trial court specifically stated that it understood that Mason was not

       admitting to any of the allegations contained in the probation revocation

       addendums, and the trial court indicated that it was not basing the revocation of

       her probation on the alcohol consumption allegation. Moreover, a review of

       the record indicates that the trial court’s statement about “several other matters

       coming up” could very well have been in reference to Mason’s testimony that

       she had been “in the middle of court” trying to regain custody of her children

       and had filed a protective order against her husband who had gotten out of

       prison “for battery on [her] son[.]” (Tr. 20, 21).


       Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 7 of 8
[16]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Mason to serve her previously suspended sentence. For

       the foregoing reasons, we affirm the trial court’s revocation of Mason’s

       probation. As noted above, we remand to the trial court with instructions to

       correct its probation revocation order and the corresponding entry in the CCS

       to accurately indicate that Mason admitted to violating probation based upon

       her commission of the new offense of driving a vehicle after being an HTV (not

       the offense of OVWI after being an HTV). Additionally, the trial court is

       instructed to correct that same CCS entry to correctly reflect that basis for its

       revocation of Mason’s probation (i.e., removing the language that indicates that

       the trial court found that Mason violated probation by consuming alcohol while

       on probation).


[17]   Affirmed and remanded.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1606-CR-1370 | January 19, 2017   Page 8 of 8
