MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 29 2019, 7:39 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen M. Heard                                           Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kyle James Fravel,                                       March 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2099
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No. 82C01-
                                                         1512-F2-7795




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019                     Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kyle Fravel (Fravel), appeals the trial court’s revocation

      of his probation and imposition of his previously-suspended sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Fravel raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion in revoking his probation and ordering him to

      serve the totality of his previously-suspended sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 14, 2015, sixteen-year-old Fravel and some of his friends robbed

      a nearby residence. Fravel waited in the car while his friends kicked in the door

      of the residence. During the robbery, one of the residents was held at gunpoint,

      while the other had a machete held to his chest. Fravel admitted that he was

      aware of the plan to commit the robbery.


[5]   On March 22, 2016, the State filed an amended Information, charging Fravel

      with eight Counts: burglary, a Level 2 felony; aiding, inducing, or causing

      burglary, a Level 2 felony; armed robbery, a Level 3 felony; two Counts of

      aiding, inducing, or causing armed robbery, Level 3 felonies; two Counts of

      armed robbery, Level 3 felonies; and criminal mischief, a Class B misdemeanor.

      On August 16, 2016, the State filed an “Information for Sentencing

      Enhancement for Person Committing Felony Offense While A Member of A

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 2 of 7
      Criminal Gang.” (Appellant’s App. Vol. II, p. 71). That same day, Fravel pled

      guilty to aiding, inducing, or causing armed robbery, as a Level 3 felony, and

      the criminal gang enhancement; the State dismissed all other charges. On

      October 18, 2016, the trial court sentenced him to three years for the Level 3

      felony, enhanced by another three years for the criminal gang adjudication.

      Fravel was ordered to serve the first sixteen months of his sentence in a juvenile

      facility, where he obtained his GED. Upon completion of this placement,

      Fravel’s sentence was modified by placing him on probation and he was

      released on October 17, 2017. As a condition of his probation, Fravel was

      required to either find employment or attend school.


[6]   On October 25, 2017, Chanze Merrick (Merrick) and Tyler Flota (Flota)

      arranged to purchase marijuana from Fravel. The meeting took place in

      Fravel’s car. Merrick had not met Fravel previously but found his voice

      distinctive. After Fravel gave Flota the marijuana, Flota and Merrick took off

      running without paying Fravel. While running, Merrick heard several

      gunshots. When police officers responded to the scene, they discovered Flota

      who had been shot in the leg. During a preliminary investigation, Flota

      identified Fravel as the shooter. After Fravel and Merrick were both arrested

      and booked into the jail, Fravel came up to Merrick, asking him “do you

      remember me . . . my name is [Fravel].” (Transcript Vol. I, p. 33). Merrick

      recognized the name and the voice. Merrick entered a guilty plea a couple of

      weeks later, in which he agreed to testify truthfully if called to do so. After




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 3 of 7
      Merrick entered his plea and returned to jail, Fravel approached him, advising

      him to back out of his plea agreement and to take his case to trial.


[7]   On October 26, 2017, the State filed a petition to revoke Fravel’s probation. On

      August 2, 2018, the trial court conducted a consolidated bench trial on the

      probation revocation petition and Fravel’s new criminal charges. Flota was

      granted use immunity to testify against Fravel, but he refused to testify for fear

      of retaliation. Because the trial court concluded that without Flota’s testimony

      there was insufficient evidence beyond a reasonable doubt that Fravel was the

      shooter, the trial court only found him guilty of dealing in marijuana, as a Class

      A misdemeanor. Thereafter, based on this new misdemeanor conviction, the

      trial court revoked Fravel’s probation in the current cause and ordered him to

      serve the remaining portion of his previously-suspended six-year sentence in the

      Department of Correction (DOC).


[8]   Fravel now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[9]   Fravel maintains that the trial court abused its discretion when it remanded him

      to the DOC to serve the remainder of his previously-suspended sentence.

      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. We

      review a trial court’s probation violation determination using an abuse of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 4 of 7
       discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014).

       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 or where the trial

       court misinterprets the law. Id. In determining whether a trial court has abused

       its discretion, we neither reweigh evidence nor judge witness credibility. Ripps

       v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider

       conflicting evidence in the light most favorable to the trial court’s ruling. Id.


[10]   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. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation

       is found, the court determines whether the violation warrants revocation. Id.

       Because a probation revocation proceeding is civil in nature, the State need only

       prove the alleged probation violation by a preponderance of the evidence.

       Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). 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.


[11]   After Fravel was found guilty of the Class A misdemeanor dealing in

       marijuana, the trial court could impose, in the current cause, one or more of the

       following sanctions: (1) continue Fravel’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; or (3) order

       execution of all or part of the sentence that was suspended at the time of the

       initial sentencing. Ind. Code § 35-38-2-3(h). Pursuant to the statute, the trial

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 5 of 7
       court elected to order the execution of all of Fravel’s previously-suspended

       term.


[12]   Analogizing to recent case law in which we reversed a trial court’s probation

       revocation because it failed to consider the particular facts and circumstances of

       the defendant, Fravel maintains that his specific situation did not warrant the

       imposition of the entire previously-suspended sentence. See, e.g., Ripps v. State,

       968 N.E.2d 323, 328 (Ind. Ct. App. 2012) (Trial court abused its discretion by

       imposing the entire previously-suspended sentence where defendant was

       terminally ill and was attempting to adhere to his probation conditions);

       Sullivan v. State, 56 N.E. 3d 1157, 1162 (Ind. Ct. App. 2016) (Trial court abused

       its discretion by imposing the entire previously-suspended sentence where

       defendant was at a mental health hospital at the time he was required to report

       to probation). Focusing on his age, his success at the juvenile detention facility

       where he obtained his GED, and the nature of the misdemeanor conviction,

       Fravel maintains that the imposition of his six-year sentence amounted to an

       abuse of discretion and should be reversed.


[13]   We disagree. Unlike the precedents relied upon by Fravel, the circumstances

       leading to Fravel’s probation revocation were not outside of his control; rather,

       Fravel intentionally committed a new crime which resulted in a misdemeanor

       conviction. Just over a week after beginning his probation, Fravel was already

       dealing marijuana and suspected to be involved in a shootout after the deal

       turned sour. After being arrested and while awaiting trial in jail, Fravel

       attempted to influence the victims and witnesses against him.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 6 of 7
[14]   Furthermore, we find Fravel’s reliance on his particular situation to be

       misplaced. Pointing to his GED as a circumstance in his favor, he fails to

       acknowledge that obtaining his GED was a requirement under his probation

       and therefore cannot be considered a mitigating circumstance. While his young

       age of nineteen could have been a favorable factor, “for people in their teens

       and early twenties [age] is not the end of the inquiry. There are both relatively

       old offenders who seem clueless and relatively young ones who appear

       hardened and purposeful.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000).

       Fravel appears to fall in this second category. At age nineteen, Fravel has

       already been convicted and served sixteen months for the role he played in an

       armed robbery with an additional enhancement for gang involvement. He then

       committed this second criminal offense—with an allegation of being armed—

       just one week after beginning his probation.


[15]   Viewing the circumstances of this particular case, we cannot say that the trial

       court abused its discretion by ordering Fravel to serve his entire previously-

       suspended sentence.


                                             CONCLUSION
[16]   Based on the foregoing, we affirm the trial court’s revocation of Fravel’s

       suspended sentence and imposition of his previously-suspended six-year

       sentence.


[17]   Affirmed.


[18]   Bailey, J. and Pyle, J. concur
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2099 | March 29, 2019   Page 7 of 7
