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:

DONALD R. SHULER                                   GREGORY F. ZOELLER
Barkes, Kolbus & Rife, LLP                         Attorney General of Indiana
Goshen, Indiana
                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                                                                             Jan 20 2012, 9:25 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




NICHOLAS A. MEADE,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 43A05-1106-CR-311
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                             The Honorable Joe V. Sutton, Judge
                               Cause No. 43D03-0804-FD-72



                                        January 20, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Nicholas Meade appeals the sentence imposed by the trial court

following the trial court’s determination that he violated his probation. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On July 24, 2008, Meade pled guilty to Class D felony nonsupport of a dependent. On

August 21, 2008, the trial court imposed a two-and-one-half-year sentence and suspended the

entire sentence to probation. As conditions of his probation, the trial court ordered Meade to:

(1) pay all child support obligations; (2) pay $2500 per year toward his child support

arrearage; (3) maintain full-time employment; (4) submit to wage withholding; (5) apply all

tax intercepts and bond distributions to the arrearage; (6) maintain current residential and

employment information with the trial court and the Title IV-D division of the Kosciusko

County Prosecutor’s Office (“Title IV-D Office”) and contact the trial court and the Title IV-

D Office in writing within seventy-two hours of any change to his address or employment

status; (7) to submit to a drug screen; and (8) refrain from consuming drugs or alcohol.

       On January 7, 2009, the State filed a verified petition alleging that Meade had violated

the terms of his probation by failing to: (1) pay his current child support obligation of $61.00

per week; (2) pay any amount toward his arrearage; (3) maintain full-time employment; and

(4) submit to wage withholding. On June 25, 2009, Meade admitted that he had violated the

terms of his probation. As a result of Meade’s probation violation, the trial court imposed a

six-month executed sentence and continued Meade on probation for a term of two years

following the executed portion of his sentence.

       On February 24, 2011, the State filed a second verified petition alleging that Meade

                                               2
had violated the terms of his probation by failing to make any child support payments. The

trial court conducted a probation revocation hearing during which Meade admitted that he

made no support payments between September 2008 and February 2011 and a representative

of the Title IV-D Office testified that Meade had paid nothing toward his $17,953 arrearage.1

At the conclusion of the probation revocation hearing, the trial court found Meade to be in

violation of his probation. On June 13, 2011, the trial court conducted a sentencing hearing

after which it imposed a two-and-one-half-year sentence, which was the maximum available.

In imposing the two-and-one-half-year sentence, the trial court ordered that Meade should

receive “good time credit at the rate of one (1) day for each day served and credit for any jail

time served from the time of the original arrest on the underlying charge to this date.”

Appellant’s App. p. 64. This appeal follows.

                                 DISCUSSION AND DECISION

               Probation is a matter of grace left to trial court discretion, not a right to
        which a criminal defendant is entitled. 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.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (quotations omitted).


        1
           We note that pursuant to Indiana Code section 35-46-1-5, a person who knowingly or intentionally
fails to provide support to his dependent child commits nonsupport of a child, a Class C felony, if the total
amount of unpaid support that is due and owing is at least $15,000.
                                                     3
        Indiana Code section 35-38-2-3 provides, in relevant part, as follows:

        (a) The court may revoke a person’s probation if:
                 (1) the person has violated a condition of probation during the
                 probationary period;
                                                ****
        (g) 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.
                 (3) Order execution of all or part of the sentence that was suspended
                 at the time of initial sentencing.

In the instant matter, the trial court found that Meade violated the terms of his probation by

failing to make any child support payments. On appeal, Meade does not argue that the trial

court abused its discretion in revoking his probation, but rather that the trial court abused its

discretion in imposing the maximum available two-and-one-half-year sentence.

        In arguing that the trial court abused its discretion in imposing the maximum available

two-and-one-half-year sentence, Meade argues that his actions did not represent the worst of

offenders. Meade argues that he did not commit a new crime and his violation was not the

result of violence or drugs.2 Meade also argues that several mitigating factors, including

physical, mental, and transportation issues hindered his ability to obtain employment. Meade

does not specify on appeal what physical or mental issues he suffers from that would impact


        2
          While it does not appear to have been a factor considered by the trial court in finding that Meade had
violated his probation, the record demonstrates that Meade tested positive for marijuana on or about June 18,
2009.

                                                       4
his ability to obtain full-time employment. While the record indicates that Meade told his

probation officer that he could not look for employment because he was suffering from back

and spleen problems and that he thought he might have cancer, problems with his teeth, or a

heart condition, Meade did not provide any documentation to either his probation officer or

the trial court showing that he was suffering from any of these alleged ailments.

       Moreover, the record indicates that Meade was in fact capable of obtaining

employment when he chose to do so. Meade obtained employment at Williams Tree

Company after the trial court found him to be in violation of his probation. Meade, however,

only worked at Williams Tree Company for eight days before quitting so that he could “take

care of stuff.” Tr. p. 126. During the course of this short-lived employment, Meade’s wages

were garnished and he made one child support payment in the amount of $110. This is the

only child support payment that Meade made in over two and one-half years.

       While Meade’s probation violation may not be the result of any violence or drugs, the

record demonstrates an absolute refusal by Meade to comply with the terms of his probation

by obtaining employment and supporting his children. Meade was given ample opportunities

to obtain employment but, rather, decided to spend his time fishing and consuming

marijuana. Meade was instructed on multiple occasions to obtain full-time employment or at

least to create a job log documenting where he was applying for employment. Meade,

however, repeatedly failed to do so. Meade also failed to provide any medical documentation

indicating that he was physically or mentally unable to work. Thus, we conclude that the trial

court properly found that Meade “knowingly, intentionally and willfully fail[ed] to pay

                                              5
support when [he had] the ability to do so.” Tr. p. 105.    In light of Meade’s knowing,

intentional, and willful failure to obtain employment and support his children, we conclude

that the trial court acted within its discretion in imposing the maximum-available two-and-

one-half-year sentence.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                            6
