      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                   FILED
      regarded as precedent or cited before any                          Sep 17 2018, 10:12 am
      court except for the purpose of establishing                            CLERK
      the defense of res judicata, collateral                             Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Laura Sorge Fattouch                                     Curtis T. Hill, Jr.
      Sorge Law Firm, LLC                                      Attorney General of Indiana
      Lawrenceburg, Indiana
                                                               Andrew A. Kobe
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ricky A. McQueen,                                        September 17, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-121
              v.                                               Appeal from the
                                                               Decatur Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Matthew D. Bailey, Special Judge
                                                               Trial Court Cause No.
                                                               16C01-1009-FA-192



      Kirsch, Judge.


[1]   Ricky A. McQueen (“McQueen”) appeals the revocation of his probation,

      contending that the trial court abused its discretion when, after McQueen


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018           Page 1 of 7
      admitted to having committed a new criminal offense, it sentenced him to serve

      1,080 days of his previously-suspended sentence in the Indiana Department of

      Correction (“the DOC”). We affirm.


                                 Facts and Procedural History
[2]   In September 2010, the State charged McQueen with three counts of dealing in

      a controlled substance, two of which were Class A felonies and one of which

      was a Class C felony. The parties entered into a conditional plea agreement,

      under which McQueen agreed to plead guilty to two Class B felonies and one

      Class C felony. The trial court accepted the plea agreement and, on December

      15, 2011, sentenced McQueen to fifteen years for each of the Class B felonies

      and eight years for the Class C felony to be served concurrently, with eight

      years executed in the DOC and seven years suspended to supervised probation.


[3]   McQueen violated his probation on three separate occasions. In September

      2014, the State filed its first verified petition to revoke McQueen’s probation.

      That matter was resolved in August 2015, when McQueen admitted to the

      violation, and the trial court revoked two years of the previously-suspended

      seven years of probation. McQueen was ordered to serve those two years in the

      DOC and, thereafter, complete the remaining five years on probation.

      Appellant’s App. Vol. 2 at 10-11.


[4]   On November 1, 2016, after McQueen was arrested for Level 6 felony

      operating a vehicle while having a conviction for the same offense within the

      previous five years, the State filed a second verified petition for revocation of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018   Page 2 of 7
      McQueen’s probation. Id. at 15-16. That second petition was still pending

      when, on September 21, 2017, the State filed a third verified petition to revoke

      McQueen’s probation, alleging that McQueen had committed Class A

      misdemeanor domestic battery. Id. at 27. On December 19, 2017, the parties

      entered into a conditional guilty plea agreement, under which McQueen

      admitted both to having violated the conditions of probation and to having

      committed Level 6 felony operating a vehicle while intoxicated. As part of the

      plea agreement, the State agreed to cap the sentence for the probation violation

      at 1,080 days and dismiss Cause Number 16D01-1710-CM-1044.1 Id. at 33.


[5]   A fact-finding hearing was held on January 2, 2018, during which the State

      remarked that the sentence agreed to by the parties under the plea agreement

      was “on the lenient side.” Tr. Vol. 2 at 18. Leniency aside, the State urged the

      trial court to accept the plea agreement because it “resolve[d] the issues.” Id.

      The trial court accepted the plea agreement and proceeded to sentencing.

      During sentencing, McQueen testified that he had been employed since the

      previous summer and that he and his fiancée had recently bought a home

      together. Id. at 5-6. He also said that he had a shoulder injury that needed

      medical care. Id. at 7-8. McQueen asked that he “be placed on home

      detention.” Id. at 8. McQueen’s mother and aunt testified that McQueen was a

      good person, who needed another chance. Id. at 12-16. McQueen admitted




      1
       Although the plea agreement did not specify the nature of the crime, from the context of the plea
      agreement, it appears that the trial court dismissed the domestic battery count.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018                    Page 3 of 7
      that he had been convicted of eight felonies and had violated probation in the

      past. Id. at 9-11.


[6]   The trial court found as a mitigating factor that McQueen pleaded guilty to

      having violated probation. However, the trial court gave less weight to the

      guilty plea because: (1) McQueen’s plea was entered more than one year after

      the crime was committed; and (2) McQueen received valuable consideration for

      the guilty plea,2 thus making it a “pragmatic decision” to enter into the plea. Id.

      at 21. The trial court found no evidence that the DOC was unable to treat

      McQueen’s shoulder injury and was unconvinced that working was a

      mitigating factor. Id. at 21-22. The trial court cited McQueen’s “extensive

      criminal history” as a “serious aggravating circumstance.” Id. Specifically, the

      trial court cited to the fact that he was convicted of dealing drugs and was on

      probation at the time he operated a vehicle while intoxicated. Id. Following

      the hearing and in compliance with the plea agreement, the trial court ordered

      that 1,080 days of McQueen’s remaining suspended-five-year sentence be

      executed in the DOC;3 the rest of his probation was terminated as

      “unsuccessful.” Appellant’s App. Vol. 2 at 13. McQueen now appeals.




      2
       McQueen’s original sentence included seven years suspended to probation. Tr. Vol. 2 at 21. Two years of
      probation were revoked as a sanction for McQueen’s first probation violation, which left five years, or 1,825
      days, of probation. McQueen’s deal with the State regarding sentencing for the instant probation violation
      “reduced his potential exposure from 1,825 days to 1,080 days.” Appellant’s App. Vol. 2 at 33.
      3
       The trial court sentenced McQueen for the probation violation and separately for the Level 6 felony
      operating a vehicle while intoxicated and ordered those sentences to run consecutively. Appellant’s App. Vol. 2
      at 13. McQueen is appealing only the sentence imposed for the probation violation.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018                  Page 4 of 7
                                     Discussion and Decision
[7]   McQueen argues that the trial court abused its discretion when it ordered him

      to serve 1,080 days of his previously-suspended sentence. “‘Probation is a

      criminal sanction wherein a convicted defendant specifically agrees to accept

      conditions upon his behavior in lieu of imprisonment.’” Hart v. State, 889

      N.E.2d 1266, 1271 (Ind. Ct. App. 2008) (quoting Abernathy v. State, 852 N.E.2d

      1016, 1020 (Ind. Ct. App. 2006)). “These restrictions are designed to ensure

      that the probation serves as a period of genuine rehabilitation and that the

      public is not harmed by a probationer living within the community.” Jones v.

      State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005).


              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.


      Hutchison v. State, 82 N.E.3d 305, 310 (Ind. Ct. App. 2017) (quoting Prewitt v.

      State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted)).

      “Accordingly, a trial court’s sentencing decisions for probation violations are

      reviewable using the abuse of discretion standard.” Id. “An abuse of discretion

      occurs where the decision is clearly against the logic and effect of the facts and

      circumstances.” Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018   Page 5 of 7
[8]   Probation revocation is a two-step process. Heaton v. State, 984 N.E.2d 614, 616

      (Ind. 2013). “First, the trial court must make a factual determination that a

      violation of a condition of probation actually occurred.” Id. (citing Woods v.

      State, 892 N.E.2d 637, 640 (Ind. 2008)). That step is not at issue here because

      McQueen admitted that he committed a probation violation. “Second, if a

      violation is found, then the trial court must determine the appropriate sanctions

      for the violation.” Id. (citing Woods, 892 N.E.2d at 640). Upon finding that a

      probationer has violated a condition of probation, a court may: (1) continue the

      defendant on probation; (2) extend the probationary period for not more than

      one year beyond the original period; or (3) order all or part of a previously-

      suspended sentence to be executed. Ind. Code § 35-38-2-3(g).


[9]   McQueen argues that he admitted his probation violation and was remorseful;

      therefore, “[h]ad the trial court properly considered the circumstances, it would

      not have revoked so much of [his] suspended sentence.” Appellant’s Br. at 6. As

      outlined, this is not McQueen’s first probation violation. In 2015, he admitted

      to a probation violation, and the trial court sentenced him to serve an executed

      two years of his previously-suspended seven-year sentence. The terms of

      McQueen’s probation included that he “not commit any criminal act or violate

      any traffic law.” Appellant’s App. Vol. 2 at 19. On November 1, 2016, the State

      filed a second petition to revoke McQueen’s probation, alleging that he

      committed Level 6 felony operating a motor vehicle while intoxicated. Id. at

      15-16. On September 21, 2017, while the second petition was still pending, the

      State filed a third petition to revoke McQueen’s probation, alleging that he


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018   Page 6 of 7
       committed the criminal offense of Class A misdemeanor domestic battery Id. at

       27. In the same plea agreement, McQueen pleaded guilty to the Level 6 felony

       and admitted to violating the terms of his probation. At that time, McQueen

       still had five years, or about 1,825 days, left of his suspended probation. Under

       these facts, the trial court did not abuse its discretion by accepting the plea

       agreement, revoking McQueen’s probation, and ordering him to serve 1,080

       days in the DOC.4


[10]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       4
         We reject McQueen’s reliance on Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016), as support for his
       argument that the trial court abused its discretion when it ordered him to serve some of his suspended
       sentence. In Johnson, the defendant received a seven-year executed sentence on home detention through
       community corrections and a four-year suspended sentence to probation. Id. at 1227. Based on the
       defendant’s failure to fully pay fees and failure to follow instructions about where and when to be outside his
       apartment unit, the trial court revoked the defendant’s entire executed sentence and ordered him to serve it in
       the DOC. Citing to the various factors in the record, including the defendant’s mental limitations, limited
       resources, previous success on work release, nature of the violation, and severity of the revocation sentence,
       our court held that the trial court had abused its discretion by finding that the defendant’s violation
       “warranted serving the entirety of the remaining portion of his executed sentence in the DOC.” Id. at 1226,
       1228, 1231. Here, unlike Johnson, the trial court did not order McQueen to serve the entirety of his suspended
       five-year-sentence in the DOC, and McQueen does not point to anything in the record to show that he has
       limited intellectual ability or that he had difficulty understanding that the terms of probation prohibited him
       from committing new crimes. The instant case is readily distinguishable from Johnson.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-121 | September 17, 2018                   Page 7 of 7
