      MEMORANDUM DECISION
                                                                      Jul 31 2015, 10:25 am
      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 estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Lawrence M. Hansen                                        Gregory F. Zoeller
      Hansen Law Firm                                           Attorney General of Indiana
      Noblesville, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jonathan Diaz,                                            July 31, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                29A02-1502-CR-112
              v.                                                Appeal from the Hamilton Circuit
                                                                Court
      State of Indiana,                                         The Honorable Paul A. Felix, Judge
                                                                Trial Court Cause No.
      Appellee-Plaintiff.
                                                                29C01-1208-FC-8331




      Pyle, Judge.


                                         Statement of the Case
[1]   Jonathon Diaz (“Diaz”) appeals the trial court’s order revoking his probation

      and ordering him to serve 490 days of his previously 550-day suspended


      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015     Page 1 of 5
      sentence. He argues that this sentence is inappropriate pursuant to Appellate

      Rule 7(B). Because we review a trial court’s imposition of a previously

      suspended sentence for an abuse of discretion, and we find no such abuse in this

      case, we affirm the trial court’s revocation of Diaz’s probation.


[2]   Affirmed.


                                                        Issue
              Whether the trial court abused its discretion by ordering Diaz to serve
              part of his previously suspended sentence.

                                                        Facts
[3]   In January 2013, Diaz pled guilty to Class D felony operating a motor vehicle

      as a habitual traffic violator in exchange for the State’s dismissal of his other

      charges of Class C felony operating a motor vehicle after forfeiture of license

      and Class B misdemeanor false informing. Thereafter, the trial court imposed a

      sentence of 1,095 days, with 545 days executed,1 550 days suspended, and 365

      days of probation.


[4]   On August 28, 2014, the State filed a notice of probation violation, alleging that

      Diaz had violated his probation by: (1) failing to report to the Probation

      Department as directed; and (2) committing new offenses—Class C felony

      operating a motor vehicle after forfeiture of his license for life and Class D




      1
        The trial court ordered Diaz to serve 365 days of his executed sentence in the Department of Correction
      followed by 180 days in the Hamilton County Work Release Program.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015               Page 2 of 5
      felony identity deception in Howard County in February 2014—and failing to

      report them to the Probation Department within 48 hours.


[5]   On January 22, 2015, the trial court held a probation hearing, during which

      Diaz admitted that he had violated his probation as alleged.2 The trial court

      determined that Diaz had violated his probation and ordered him to serve 490

      days of his previously 550-day suspended sentence. Diaz now appeals.


                                                      Decision
[6]   Diaz argues that the trial court erred by ordering him to serve part of his

      previously suspended sentence in the Department of Correction. Diaz suggests

      that we should apply the standard of review from a sentence review under

      Indiana Appellate Rule 7(B). Our Indiana Supreme Court, however, has

      explained that “[t]his is not the correct standard to apply when reviewing a

      sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007).


[7]   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




      2
        Diaz indicated that, in regard to the new offenses, he had pled guilty to the Class C felony, and the Class D
      felony was dismissed.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015                 Page 3 of 5
      proceed.” Prewitt, 878 N.E.2d at 188. “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.


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

      Diaz to serve part of his previously suspended sentence in the Department of

      Correction. Here, Diaz violated his probation, in part, based on the

      commission of another habitual traffic violator offense, which is the same type

      of offense as the one for which he was placed on probation. Indeed, when

      determining what part of Diaz’s suspended sentence to impose, the trial judge

      specifically addressed Diaz and discussed this as part of its reasoning for

      imposing part of his suspended sentence. The trial judge told Diaz that he had

      continued to make bad decisions despite assuring the judge during the January

      2013 sentencing hearing that he would not drive again. The trial court

      acknowledged Diaz’s choice to admit to the probation violations, but it stated

      that Diaz’s actions in committing a new traffic violator offense and not

      reporting the offense to the probation department involved a violation of trust.

      Furthermore, the presentence investigation report reveals that Diaz, who was

      twenty-eight when he committed the original Class D felony driving offense,




      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015   Page 4 of 5
       has a rather substantial criminal history, including multiple convictions relating

       to driving without a license.


[9]    Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Diaz to serve part of his previously suspended sentence

       in the Department of Correction. For the foregoing reasons, we affirm the trial

       court’s revocation of Diaz’s probation.


[10]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015   Page 5 of 5
