Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                           Jul 23 2014, 7:06 am
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:

LEANNA WEISSMANN                                     GREGORY F. ZOELLER
Lawrenceburg, Indiana                                Attorney General of Indiana

                                                     JESSE R. DRUM
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSEPH CHADWICK COLE,                                )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 69A05-1402-CR-92
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE RIPLEY CIRCUIT COURT
                             The Honorable Carl Taul, Judge
                              Cause No. 69C01-0910-FB-22



                                           July 23, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Contending the trial court abused its discretion, Joseph C. Cole appeals its order

revoking his probation. We affirm.

      On February 7, 2011, Cole pleaded guilty to sexual misconduct with a minor as a

Class B felony and was sentenced to six years, with three of those years suspended to

probation. As a condition of his probation, Cole was not to ingest alcohol or illegal

substances and was ordered not to commit additional crimes.

      During the term of his probation, Cole was arrested for operating a vehicle while

intoxicated. The arresting officer administered a breath test at the scene which showed

Coles’ blood alcohol content was 0.22%. Cole pleaded guilty and was convicted of

operating while intoxicated.

      The State filed a petition to revoke his probation contending that he had violated his

probation by ingesting alcohol, committing a new offense, and failing to pay probation

fees. Cole admitted the allegations, and the trial court revoked Cole’s probation and

ordered him to serve the remainder of his sentence.

      “Probation is a matter of grace left to trial court discretion, not a right to which a

criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “The

trial court determines the conditions of probation and may revoke probation if the

conditions are violated.” Id. Upon the revocation of probation, the trial court may: (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 original

probationary period; and (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(g). A trial court’s

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sentencing decisions for probation violations are reviewable using the abuse of discretion

standard. Prewitt, 878 N.E.2d at 188. “An abuse of discretion occurs where the decision

is clearly against the logic and effect of the facts and circumstances.” Id.

       Cole violated three conditions of his probation. He ingested alcohol and was

convicted of a new crime. When arrested, the portable breath test showed his blood alcohol

content was nearly three times the legal limit. In addition, Cole failed to pay his probation

fees, notwithstanding his employment and ability to pay. Finally, Cole had a history of

prior probation violations.

       Cole has failed to show that the trial court abused its discretion.

       Affirmed.

BAKER, J., and ROBB, J., concur.




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