                                                                             FILED
                                                                        Dec 31 2018, 11:25 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                      Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Nicholas L. Porter,                                       December 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1931
        v.                                                Appeal from the Bartholomew
                                                          Circuit Court
State of Indiana,                                         The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          03C01-1507-F6-3534



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018                            Page 1 of 4
                                           Case Summary
[1]   Nicholas Porter (“Porter”) pled guilty to Theft, as a level 6 felony. He received

      a sentence of two and one-half years, with two years suspended to probation.

      Following the revocation of his probation, Porter appeals, presenting the sole

      issue of whether the trial court abused its discretion in imposing a probation

      violation sanction. We affirm.



                             Facts and Procedural History
[2]   On January 19, 2016, Porter pled guilty to one count of Theft. He was ordered

      to serve two and one-half years in the Bartholomew County Jail, but two years

      were suspended to probation. He was also ordered to pay restitution to the

      victim and complete substance abuse treatment.


[3]   On March 27, 2018, the State petitioned to revoke Porter’s probation. The

      petition, as amended, alleged that Porter had missed probation appointments

      and had committed a new criminal offense while on probation. A hearing was

      conducted on July 16, 2018. Porter admitted that he had committed a new

      criminal offense, unauthorized entry of a motor vehicle. The trial court ordered

      that Porter serve the two years of his sentence that was previously suspended.

      He now appeals.




      Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018     Page 2 of 4
                                 Discussion and Decision
[4]   Porter argues that the sanction imposed is unduly harsh. More particularly, he

      contends that he should receive credit for his admission, akin to mitigating

      weight afforded a guilty plea in sentencing proceedings, and that the trial court

      should have issued a statement to that effect.


[5]   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 if the conditions are

      violated, the trial court may impose one of three types of sanctions: (1)

      continue the person on probation with or without modification; (2) extend the

      probationary period; or (3) order execution of all or part of the sentence that

      was suspended at the time of the initial sentencing. See Ind. Code § 35-38-2-

      3(h); Prewitt, 878 N.E.2d at 188.


[6]   We review a sanction imposed following revocation of probation for an abuse

      of discretion. Id. An abuse of discretion occurs where the decision is clearly

      against the logic and effect of the facts and circumstances before the trial court.

      Id. Violation of a single condition of placement is sufficient to revoke

      placement. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007).


[7]   Porter was afforded the rehabilitative opportunity to participate in substance

      abuse treatment as a probationer. Evidence adduced at the probation

      revocation hearing indicates that he failed to maintain contact with the

      probation department and instead committed one or more new criminal

      Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018       Page 3 of 4
       offenses.1 He had a history of committing property crimes and had violated

       probation in the past. As Porter has displayed an unwillingness to avail himself

       of rehabilitative efforts, we find no abuse of the trial court’s discretion in

       ordering him to serve two years of his original sentence.


[8]    To the extent Porter suggests that the trial court was required to treat his

       admission as a guilty plea and accord it mitigating weight in a balancing of

       sentencing factors, we disagree. Indiana Code Section 35-38-2-3 sets forth the

       appropriate procedure, respective duties of the State and courts, and the rights

       of a defendant, in a probation revocation proceeding. This governing statute

       imposes no requirement upon the trial court to balance aggravating and

       mitigating circumstances and issue a sentencing statement when imposing a

       sanction for a probation violation.



                                                  Conclusion
[9]    Porter has demonstrated no abuse of the trial court’s discretion.


[10]   Affirmed.


       Bradford, J., and Brown, J., concur.




       1
         In Johnson County, Indiana, Porter pled guilty to unauthorized entry of a motor vehicle, and he was placed
       on probation for that offense. Porter claims to have missed two probation appointments because he was in
       jail, but it is unclear whether this incarceration was for the unauthorized entry offense or some other offense.

       Court of Appeals of Indiana | Opinion 18A-CR-1931 | December 31, 2018                               Page 4 of 4
