Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Sep 17 2013, 5:32 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:

MARK SMALL                                       GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 MICHELLE BUMGARNER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ERIC G. COUTHEN,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 84A04-1302-CR-65
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable David R. Bolk, Judge
                              Cause No. 84D03-0801-FA-106



                                     September 17, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SULLIVAN, Senior Judge
      Eric Couthen appeals the sentence imposed by the trial court following the

revocation of his probation. We affirm.

      In January 2008, the State charged Couthen in Vigo Superior Court with Class A

felony possession of a destructive device or explosive, Class C felony intimidation, and

two counts of Class A misdemeanor invasion of privacy. Couthen pleaded guilty to the

intimidation charge pursuant to a plea agreement in which the State agreed to dismiss the

remaining charges. The agreement also provided that the State would recommend an

eight-year sentence, with six years executed and two years suspended to probation. The

trial court accepted the plea, entered judgment of conviction, and sentenced Couthen to

eight years, with six years executed and two years suspended to probation.

      Couthen began his probation in May 2011. In September 2011, the State filed a

notice of probation violation, alleging he had been charged with new crimes while on

probation. Couthen appeared for a hearing in October 2011. The court informed him of

the allegations, appointed counsel, and set the next hearing for January 2012. Couthen

failed to appear for the January 2012 hearing, and a bench warrant was issued.

      Couthen was arrested in April 2012 and appeared for a hearing. There, the parties

agreed the State would amend the allegations to include failure to report to the probation

department; Couthen would admit he failed to report, be released from custody, and be

ordered to report to his probation officer after resolution of a matter pending in Johnson

County; and the parties would then proceed to disposition for the probation violation.

Couthen was aware that the State’s recommendation would “obviously depend[ ] upon



                                            2
how he does and reports.” Tr. p. 26. The court granted the motion to amend, Couthen

admitted he failed to report, and a dispositional hearing was set for June 4, 2012.

       On that date, Couthen failed to appear, and his probation officer noted that

Couthen was scheduled to appear in court in Johnson County on the same day. The Vigo

Superior Court continued the matter to June 18, 2012. On June 18, Couthen failed to

appear yet again, and the court was informed that he had failed to appear for his June 4

Johnson County hearing and that a warrant had thus been issued. The Vigo Superior

Court issued a bench warrant.

       In December 2012, Couthen was arrested and appeared for a hearing. The State

recommended a one-year executed sentence, and Couthen asked for time served. The

trial court ordered an updated presentence investigation report and continued the matter

to January 2013.

       At the January 2013 hearing, the State noted that the presentence investigation

report reflected a “fairly significant adult criminal history.” Id. at 71. Further noting

Couthen’s “failure to bring himself into compliance, despite being given numerous

chances over a significant period of time,” id. at 72, the State asked the court to order him

to serve the entire two years that were previously suspended. Couthen again asked for

time served. The court revoked Couthen’s probation and ordered the entire previously-

suspended sentence to be executed.

       The sole issue presented in this appeal is whether the trial court abused its

discretion by ordering Couthen to serve his entire previously-suspended sentence.



                                             3
       A trial court’s sentencing decisions for probation violations are reviewable for an

abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of

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

circumstances. Id. A trial court may order execution of all or part of a suspended

sentence upon a violation of probation. Ind. Code § 35-38-2-3(g)(3) (2010).

       The trial court’s statement while imposing Couthen’s sanction reflects his poor

behavior while on probation. There, the court noted his multiple failures to appear in this

case, his convictions in Terre Haute City Court for possession of marijuana and driving

while suspended, his then-pending charge in Johnson County for purchasing more than

3.6 grams of ephedrine or pseudoephedrine, and the several warrants issued for his arrest

from all three courts. We also note Couthen has admitted violating his probation at least

four times in the past.

       Couthen nonetheless argues his 2008 plea agreement provides the basis for a lesser

sanction.    Specifically, he claims the State essentially modified that contract by

recommending only a one-year executed sentence at his December 2012 hearing, and

thus, his argument continues, the trial court abused its discretion by imposing more than

one year.1

       There are several defects in this argument, only one of which is necessary to note

here. The State’s recommendation on Couthen’s probation violation sanction has nothing




1
 Couthen says nothing about the State increasing its recommendation to two years upon reviewing his
presentence investigation report at the January 2013 hearing.
                                                4
to do with his plea agreement. It was just that—a recommendation—and in no way

binding on the trial court.

        We therefore conclude that the trial court did not abuse its discretion by imposing

Couthen’s entire previously-suspended sentence upon the revocation of his probation.2

        Affirmed.3

RILEY, J., and BRADFORD, J., concur.




2
  Couthen also invokes Indiana Appellate Rule 7(B) and argues that the trial court’s imposition of his
previously-suspended sentence was inappropriate. He asks us to revise the trial court’s sanction
downward. Review and revision of sentences pursuant to Rule 7(B), however, does not apply to
sanctions imposed in probation revocation proceedings. Prewitt, 878 N.E.2d at 188 (whether court’s
sanction is inappropriate in light of nature of offense and character of offender “is not the correct standard
to apply when reviewing a sentence imposed for a probation violation”).
3
  Couthen further cites the federal and state constitutional provisions prohibiting cruel and unusual
punishment but provides no corresponding analysis or argument. The issue is therefore waived.
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