      MEMORANDUM DECISION
                                                                       Jan 29 2015, 9:36 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
      Cara Schaefer Wieneke                                    Gregory F. Zoeller
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Plainfield, Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James T. Reese,                                          January 29, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               73A01-1408-CR-341
              v.                                               Appeal from the Shelby Superior
                                                               Court
                                                               The Honorable Jack A. Tandy,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 73D01-1208-FC-43




      Crone, Judge.


                                             Case Summary
[1]   James T. Reese appeals the trial court’s order revoking his probation and

      remanding him to the Indiana Department of Correction (“DOC”) for thirty of

      the thirty-six months of his suspended sentence stemming from his conviction

      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015   Page 1 of 5
      for class C felony intimidation. Finding that the trial court acted within its

      discretion, we affirm.


                                 Facts and Procedural History

[2]   In November 2012, Reese pled guilty to class C felony intimidation. The trial

      court sentenced him to five years, with two years executed and the remainder

      suspended to probation.


[3]   In August 2013, the State filed a petition to revoke Reese’s probation, citing

      marijuana use, a failure to answer reasonable questions from his probation

      officer, and a failure to attend scheduled meetings with his probation officer.

      Reese admitted to the violations during a November 2013 revocation hearing.

      The trial court continued Reese’s probation, subject to the additional conditions

      that he complete sixty hours of community service, obtain an ADA evaluation,1

      and comply with all recommendations.


[4]   In February 2014, the State filed a second probation revocation petition against

      Reese, alleging that he tested positive for methamphetamine (“meth”), was not

      forthright about his drug use, and failed to begin his community service hours.




      1
          We note that the record does not specifically define the term “ADA.”

      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015   Page 2 of 5
      Two months later, the State filed an addendum alleging that Reese had again

      tested positive for meth. At his July 2014 probation revocation hearing, Reese

      admitted to the violations contained in both the petition and the addendum.

      The trial court issued an order revoking his probation and remanding him to the

      DOC for thirty of the thirty-six months of his suspended sentence.


[5]   Reese now appeals. Additional facts will be presented as necessary.


                                  Discussion and Decision
[6]   Reese maintains that the trial court abused its discretion in ordering him to

      execute thirty months of his thirty-six-month suspended sentence after his

      second round of probation violations. 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, 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. Proof of a single violation is

      sufficient to permit a trial court to revoke probation. Beeler v. State, 959 N.E.2d

      828, 830 (Ind. Ct. App. 2011), trans. denied.


[7]   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. Then, if a violation is found, the court determines whether the

      violation warrants revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).




      Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015   Page 3 of 5
[8]    A trial court’s sentencing decisions for probation violations are reviewable for

       an abuse of discretion. Prewitt, 878 N.E.2d at 188. 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. Id.


[9]    Here, Reese admitted to all the violations alleged in the State’s second

       revocation petition and the addendum to it. These include using and

       consuming meth, providing untruthful information to his probation officer, and

       failing to perform or even begin his sixty hours of community service. The only

       allegation for which he offered any explanation was his community service,

       claiming that he lacked the funds necessary to pay the $100 fee.


[10]   Because Reese admitted to the violations, the trial court was left to determine

       which of the following actions to take: (1) continue Reese’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;

       and/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).


[11]   As noted, this is Reese’s second probation revocation proceeding. During the

       hearing on the State’s first petition, Reese admitted to the violations, and the

       trial court opted to continue his probation with enlarged conditions, including

       sixty hours of community service and an ADA evaluation. In the two and a

       half months that followed, Reese tested positive for meth and failed to perform

       or even begin performance of his court-ordered community service. He was


       Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015   Page 4 of 5
       untruthful with his probation officer concerning his drug use and continued to

       use meth, even though the second petition to revoke his probation was already

       pending. Again, he admitted to the allegations, and this time, the trial court

       imposed a different option within the statutory framework – execution of most

       but not all of his suspended term. Ind. Code § 35-38-2-3(h)(3).


[12]   In sum, the trial court granted Reese leniency when it continued his probation

       after his first round of violations. Instead of responding positively to the grace

       afforded him, Reese continued to engage in prohibited conduct (taking drugs)

       and neglected to engage in positive conduct (serving his community). He has

       an extensive adult and juvenile criminal record and has repeatedly

       demonstrated that he is unwilling to comply with the terms of his probation and

       with the law in general. Simply put, these patterns of conduct do not portend

       success for him outside the confines of the DOC. Based on the foregoing, we

       conclude that the trial court acted within its discretion in revoking Reese’s

       probation and remanding him to the DOC for thirty months of his remaining

       term. Accordingly, we affirm.


[13]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




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