      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Feb 12 2019, 8:48 am
      court except for the purpose of establishing
                                                                                CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                       Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana
                                                               Matthew F. Kite
      Laura Sorge Fattouch                                     Angela Sanchez
      Lawrenceburg, Indiana                                    Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dennis Jason Lee,                                        February 12, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1792
              v.                                               Appeal from the
                                                               Ripley Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Jeffrey Sharp, Judge
                                                               Trial Court Cause No.
                                                               69D01-1709-F6-172



      Kirsch, Judge.


[1]   Dennis Jason Lee (“Lee”) appeals from the trial court’s order revoking his

      probation. He raises one issue for our review: whether the trial court abused its

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019             Page 1 of 7
      discretion when it ordered him to serve 650 days of his previously-suspended

      sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 13, 2017, the State charged Lee with Level 6 felony nonsupport

      of a dependent child, alleging that Lee knowingly failed to provide support for

      his child since July 1, 2014. Appellant’s App. Vol. 2 at 9. On the same day, a

      probable cause affidavit was filed, stating that Lee had not made child support

      payments and had an arrearage of $44,866.62 as of July 31, 2017. Id. at 13. On

      November 28, 2017, Lee pleaded guilty to Level 6 felony nonsupport of a

      dependent child and was sentenced to 910 days with 752 days suspended to

      probation. Lee’s plea agreement stipulated that he would make weekly child

      support payments of $62.00 in a timely manner during his entire probationary

      period lasting 752 days. Id. at 13, 25-26. The plea agreement further stipulated

      that failure to pay child support for two consecutive weeks or a total of three

      missed weeks would result in a violation of probation. Id. at 26.


[4]   On February 14, 2018, the State filed a “Petition for Probation Violation

      Hearing,” alleging that Lee had failed to make child support payments as

      directed by the trial court. Id. at 27-28. The petition stated that Lee’s last child

      support payment was on January 19, 2018 in the amount of $62.50, which left

      Lee with an arrearage sum of $46,416.50. Id. at 28. A warrant was issued for

      Lee’s arrest. Id. at 29.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019   Page 2 of 7
[5]   On July 9, 2018, the trial court held a hearing, during which Lee admitted

      violating probation by failing to make child support payments. Tr. Vol. 2 at 14.

      In determining the appropriate sanction for Lee’s probation violation, the trial

      court observed that the crime for which Lee was on probation was nonsupport

      of a dependent child as a Level 6 felony. Id. at 17. The trial court took into

      consideration Lee’s criminal history, which included several prior convictions

      for crimes such as residential entry, criminal trespass, dealing marijuana,

      battery, possession of a narcotic, and resisting law enforcement. Id. The trial

      court also stated that Lee had violated probation in his prior cases on numerous

      occasions. Id. The trial court considered as a mitigating circumstance that Lee

      had admitted the probation violation and had done so early in the proceedings.

      Id.


[6]   As to the circumstances of his probation violation, the trial court found that the

      amount of the arrearage was an aggravating factor. Id. The trial court noted

      that Lee had never filed anything with the court requesting a reduction or

      abatement in his child support and had never informed the trial court of any

      change of employment issues or change of income. Id. The trial court further

      found that Lee had consistently disregarded his child support obligations. Id. at

      17-18. The trial court, therefore, revoked Lee’s probation, ordered him to serve

      650 days of his previously-suspended sentence, and terminated his probation.

      Id. at 18. The trial court credited Lee with 61 days for time served, which it

      noted would amount to 122 days with good time credit. Id. Lee now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019   Page 3 of 7
                                     Discussion and Decision
[7]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

      App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.

      denied. “Courts in probation revocation hearings ‘may consider any relevant

      evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

      State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

      court to determine the conditions of a defendant’s probation and to revoke

      probation if the conditions are violated.” Id. Our court has said that “all

      probation requires ‘strict compliance’” because once the trial court extends this

      grace and sets its terms and conditions, the probationer is expected to comply

      with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

      (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

      Id. If a violation is proven, the trial court must determine if the violation

      warrants revocation of the probation. Sullivan v. State, 56 N.E.3d 1157, 1160

      (Ind. Ct. App. 2016). “‘However, even a probationer who admits the

      allegations against him must still be given an opportunity to offer mitigating

      evidence suggesting that the violation does not warrant revocation.’” Id.

      (quoting Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012)).


[8]   If the trial court determines a probationer has violated a term of probation, then

      the court may impose one 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 year beyond the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019   Page 4 of 7
       original probationary period; or (3) order execution of all or part of the sentence

       that was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h).

       We review a trial court’s sentencing decisions for probation violations under an

       abuse of discretion standard. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.

       2017). An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances. Id.


[9]    Lee argues that the trial court abused its discretion when it ordered him to serve

       650 days of his previously-suspended sentence. Specifically, he asserts that the

       trial court’s stated aggravating factors of his criminal history and failure to file a

       request to abate his child support obligation did not arise since he was placed

       on probation and that the only changed circumstance shown was that he was

       involuntarily unemployed due to his place of employment being destroyed. Lee

       further contends that, based on his timely admission to the violation and the

       “essentially technical nature of his violation,” it was an abuse of discretion for

       the trial court to revoke the majority of his suspended time. Appellant’s Br. at

       11.


[10]   Lee’s underlying conviction in this case was for Level 6 felony nonsupport of a

       dependent child. As a condition of his probation for that conviction, he was

       ordered to make weekly child support payments of $62.00 in a timely manner,

       and a failure to pay child support for two consecutive weeks or a total of three

       missed weeks would result in a violation of probation. Appellant’s App. Vol. 2 at

       13, 25-26. On February 14, 2018, the State filed a petition to revoke Lee’s

       probation alleging that he had failed to make child support payments as

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019   Page 5 of 7
       directed by the trial court and that his last child support payment was on

       January 19, 2018, with an arrearage sum of $46,416.50. Id. at 27-28.


[11]   In its consideration of what sanction to impose, the trial court found as

       aggravating factors the amount of the arrearage and that Lee had a criminal

       history that included several prior probation violations. The trial court found as

       a mitigating factor the fact that Lee admitted his violation so early in the

       proceedings. The trial court went on to state that Lee had not requested any

       reduction or abatement to his child support obligation based on his change in

       income. Although Lee alleges that the failure to file a request to abate his child

       support obligation did not arise since the time he was placed on probation, this

       is not true; Lee claims that he lost his employment subsequent to being placed

       on probation, and therefore, he could have filed a request to reduce or abate his

       obligation in the time since he lost his employment. Based on Lee’s underlying

       conviction for nonsupport of a dependent child and his constant disregard for

       his child support obligation, it was not against the logic and effect of the facts

       and circumstances for the trial court to order Lee to serve 650 days of his

       previously-suspended sentence. We conclude that the trial court did not abuse

       its discretion.1




       1
         Lee cites to several cases to support his assertion that the trial court abused its discretion because the nature
       of his violation was minor or technical. However, we disagree with Lee’s characterization of his violation as
       minor or technical. Lee was originally convicted of Level 6 felony nonsupport of a dependent child and
       given a sentence suspended to probation on November 28, 2017. As a condition of probation, Lee was
       required to pay his child support obligation weekly, and by February 14, 2018, when the petition to revoke

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019                       Page 6 of 7
[12]   Affirmed.


       Riley, J., and Robb, J., concur.




       probation was filed, he had already failed to pay his obligation as ordered. We do believe that such a
       violation is minor or technical in nature.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1792 | February 12, 2019                  Page 7 of 7
