MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Oct 26 2016, 8:44 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Kent R. Blair, Sr.,                                      October 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1604-CR-833
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1407-F6-6



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016       Page 1 of 8
                                            Case Summary
[1]   Kent R. Blair, Sr. appeals the revocation of his probation. He challenges the

      sufficiency of the evidence to support a finding that he violated his probation

      and the trial court’s decision to remand him to the Department of Correction

      (“DOC”) for the remainder of his previously suspended term. Finding that the

      evidence is sufficient and the trial court acted within its discretion in executing

      his suspended sentence, we affirm.


                              Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows: Blair married Rhonda

      in 1999, and a son (“Son”) was born of the marriage. The couple owned a

      residence on Scott Avenue (“the Property”). In 2012, Blair was convicted of

      strangulation and domestic battery, both as class D felonies, stemming from a

      domestic violence incident against Rhonda. In 2014, Rhonda sought and

      obtained a protective order against Blair. Shortly thereafter, Blair violated the

      protective order, pled guilty to level 6 felony invasion of privacy, and was

      sentenced to probation. Meanwhile, Rhonda filed a petition for marital

      dissolution. Blair was served but failed to appear for the dissolution hearing.

      As part of the 2015 dissolution decree, Rhonda was awarded the Property, for

      which the Allen County Commissioner issued her a quitclaim deed. State’s

      Exs. 2, 4.


[3]   At one point in 2015, Rhonda left the Property due to safety concerns involving

      Blair. In October 2015, Rhonda came to the Property to pick up some clothing.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016   Page 2 of 8
      When she attempted to unlock the door, she discovered that the locks had been

      changed. Blair and Son were inside. Blair told Rhonda to leave and claimed

      that he was the owner of the Property. Rhonda refuted his claim of ownership,

      ordered him to leave, and called the police. Blair and Son fled on foot before

      the police arrived.


[4]   A similar incident occurred in November 2015, in which Rhonda attempted to

      enter the Property, discovered that the locks had again been changed, and

      found that Blair and Son were inside. This time, Blair and Son did not leave,

      and when Rhonda showed the responding officer her ownership papers, the

      officer kicked in the door and arrested Blair for violating the protective order

      and trespassing on Rhonda’s property.


[5]   After the November 2015 incident, the State filed a petition to revoke Blair’s

      probation, citing as violations his commission of invasion of privacy and

      criminal trespass. At the close of the March 2016 revocation hearing, the trial

      court found that Blair had violated his probation by committing new criminal

      offenses and remanded him to the DOC to serve the two remaining years of his

      previously suspended sentence.


[6]   Blair now appeals. Additional facts will be provided as necessary.


                                   Discussion and Decision
[7]   Blair maintains that the trial court abused its discretion in revoking his

      probation. Probation is a matter of grace left to the trial court’s sound

      discretion, not a right to which a criminal defendant is entitled. Prewitt v. State,
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      878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of

      probation and may revoke probation if the probationer violates those

      conditions. Id. We review a trial court’s probation violation determination

      using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042

      (Ind. Ct. App. 2014). An abuse of discretion occurs where the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before it or where the trial court misinterprets the law. Id. In determining

      whether a trial court has abused its discretion, we neither reweigh evidence nor

      judge witness credibility. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App.

      2014). Instead, we consider conflicting evidence in the light most favorable to

      the trial court’s ruling. Id.


[8]   Probation revocation is a two-step process, wherein the trial court first makes a

      factual determination as to whether the probationer violated the terms of his

      probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation

      is found, the court determines whether the violation warrants revocation. Id.


      Section 1 – The evidence is sufficient to support a finding that
                       Blair violated his probation.
[9]   Blair first submits that the evidence is insufficient to support the trial court’s

      determination that he violated his probation. Because a probation revocation

      proceeding is civil in nature, the State need only prove the alleged probation

      violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479,

      485 (Ind. Ct. App. 2010). Proof of a single violation is sufficient to permit a



      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016   Page 4 of 8
       trial court to revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct.

       App. 2011), trans. denied.


[10]   Here, the State alleged that Blair violated his probation by committing new

       criminal offenses. In the context of probation revocation, the State need not

       establish that the defendant was actually convicted of the new offense. Lightcap v.

       State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007). However,


               [w]hen a probationer is accused of committing a criminal offense,
               an arrest alone does not warrant the revocation of probation.
               Likewise, the mere filing of a criminal charge against a defendant
               does not warrant the revocation of probation. Instead, when the
               State alleges that the defendant violated probation by committing
               a new criminal offense, the State is required to prove—by a
               preponderance of the evidence—that the defendant committed
               the offense.


       Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted).


[11]   In its revocation petition, the State alleged that Blair had violated his probation

       by committing new offenses, one of which was invasion of privacy. A person

       who knowingly or intentionally violates an ex parte protective order commits

       invasion of privacy. Ind. Code § 35-46-1-15.1(2). Blair admitted that he was

       aware of the protective order, which prohibited him from having contact, direct

       or indirect, with Rhonda. He knew that even though Rhonda had left the

       Property due to safety concerns, she frequented the Property. His action in

       changing the locks (twice) shows that he expected her to come to the Property.

       This evidence is particularly probative concerning the November incident, as


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       Rhonda had previously chased him away by calling the police during the

       October incident. Evidence of this single violation is sufficient to support a

       revocation of Blair’s probation. 1 As such, we conclude that the trial court acted

       within its discretion in determining that Blair violated the terms of his

       probation.


             Section 2 – The trial court acted within its discretion in
                ordering the execution of Blair’s remaining term.
[12]   Blair also cites as error the trial court’s decision to remand him to the DOC for

       the remainder of his previously suspended sentence. The trial court’s

       sentencing decisions for probation violations are reviewable for an abuse of

       discretion. Prewitt, 878 N.E.2d at 188. Having concluded that Blair committed

       a probation violation, the trial court could impose one or more of the following

       sanctions: (1) continue Blair’s probation, with or without modifying or

       enlarging the conditions; (2) extend his probationary period for not more than

       one year beyond the 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).


[13]   Pursuant to the statute, the trial court chose to order the execution of all of

       Blair’s previously suspended term. Blair incorrectly characterizes the court’s




       1
         Because we find the evidence sufficient to support the trial court’s finding that Blair committed invasion of
       privacy, we need not address his challenge to the sufficiency of the evidence concerning criminal trespass.
       Nevertheless, we note that his arguments concerning criminal trespass amount to invitations to reweigh
       evidence and reassess witness credibility, which we may not and will not do. Ripps, 968 N.E.2d at 326.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016              Page 6 of 8
       action as a “sentencing” decision and proceeds to analyze the nature of his

       offense and his character. See Ind. Appellate Rule 7(B) (authorizing appellate

       review and revision of “a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.”). In Prewitt, 878 N.E.2d at 187-88, our supreme court emphasized

       that an Appellate Rule 7(B) analysis is not the correct standard to apply when

       reviewing a trial court’s actions in post-sentence probation violation

       proceedings. Because “[a] trial court’s action in a post-sentence probation

       violation proceeding is not a criminal sentence as contemplated by the rule …

       [t]he review and revise remedy of [Rule] 7(B) is not available.” Jones v. State,

       885 N.E.2d 1286, 1290 (Ind. 2008). Instead, we review the trial court’s decision

       on sanctions for probation violations for an abuse of discretion. Prewitt, 878

       N.E.2d at 188.


[14]   In conducting our abuse of discretion analysis, we note Blair’s lengthy history

       of offenses against Rhonda as well as probation failures. This includes class D

       felony convictions in 2012 for strangulation and domestic battery in the

       presence of a child under age sixteen. When Blair was released from the DOC

       in 2013, he violated the terms of his probation, which resulted in a revocation

       within the ensuing six months. He was convicted of invasion of privacy twice

       in 2014, with both cases involving Rhonda. He was placed on probation, yet he

       twice went to the Property awarded to Rhonda, changed the locks, and

       occupied the premises. Simply put, Blair’s pattern of violating protective orders


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016   Page 7 of 8
       and probation terms is indicative of a person with no regard for the law. There

       is little reason to believe that he will discontinue this pattern absent

       incarceration. Based on the foregoing, we find no abuse of discretion in the

       trial court’s choice of sanction. Accordingly, we affirm.


[15]   Affirmed.


       Kirsch, J., and May, J., concur.




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