MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Dec 11 2019, 8:58 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
R. Brian Woodward                                       Curtis T. Hill, Jr.
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Courtney L. Staton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott Thomas Porta,                                     December 11, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1573
        v.                                              Appeal from the
                                                        Lake Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Kathleen A. Sullivan,
                                                        Judge Pro Tempore
                                                        The Honorable
                                                        Natalie Bokota, Magistrate
                                                        Trial Court Cause No.
                                                        45G02-1811-F6-1525



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019                   Page 1 of 7
[1]   Scott Thomas Porta (“Porta”) appeals from the trial court’s order revoking his

      probation. He raises one issue for our review: whether the trial court abused its

      discretion when it revoked his probation and ordered him to serve his

      previously-suspended sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 16, 2018, Porta went to the home of Timothy Garcia, entered

      without permission, and threatened to “beat his ass.” Appellant’s App. Vol. II at

      23. On November 20, 2018, the State charged Porta with Level 6 felony

      residential entry and Level 6 felony intimidation. Id. at 10. On January 25,

      2019, Porta pleaded guilty to intimidation as a Level 6 felony, and the State

      agreed to dismiss the residential entry charge. Id. at 20-22. The trial court

      accepted the plea agreement and sentenced Porta to two years, all of which was

      suspended. Id. at 24-25. Porta was placed on formal probation for two years,

      which included, among other conditions, that he report to the probation

      department, pay probation user fees, and enroll in and complete a substance

      abuse program. Id. at 24-25, 42-43.


[4]   After being sentenced, Porta was released from the Lake County Jail. At that

      time, it was 4:30 p.m., and the probation department was closed, so Porta did

      not report to probation at that time. Tr. Vol. 2 at 7. On the day of his release, it

      was very cold, and since Porta did not have a driver’s license, he had to walk to

      Schererville. Id. at 6. The weather continued to be cold for the rest of the week,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019   Page 2 of 7
      and Porta “couldn’t make it back” to the courthouse to report to the probation

      department to begin his placement on probation. Id. After that, Porta “knew

      [he] was in trouble” so he “just didn’t go” to probation. Id. at 6, 8.


[5]   On February 27, 2019, the State filed a petition to revoke Porta’s probation.

      Appellant’s App. Vol. II at 34. Specifically, the State alleged that Porta had

      violated the terms and conditions of his probation in the following three ways:

      (1) failing to report to begin his probationary term on January 30, 2019 as

      ordered by the trial court and not contacting the probation department; (2)

      failing to make any payments toward his probation user fees; and (3) failing to

      enroll in and complete a substance abuse program. Id. A warrant was issued,

      and Porta was arrested on March 29, 2019. Id. at 6. On April 17, 2019, Lake

      County Community Corrections (“Community Corrections”) informed the trial

      court that Porta was not an appropriate candidate for community corrections

      placement. Id. at 41. Specifically, Community Corrections stated that Porta

      had previously participated in the work release program and had received

      multiple rule violations and maintained an outstanding balance of fees. Id.


[6]   On June 11, 2019, a hearing was held on the petition to revoke Porta’s

      probation. Tr. Vol. 2 at 2. At the beginning of the hearing, Porta informed the

      trial court that he was prepared to admit to the allegations contained in the

      petition. Id. at 3. The trial court advised Porta that “[t]he petition to revoke

      probation that was filed on February 27th in this case alleges that you violated

      three rules. Essentially, that you never did report to probation on January 30th,

      or contact them, didn’t pay your fees, [and] didn’t complete the substance abuse

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019   Page 3 of 7
      program.” Id. at 4. The trial court then asked Porta if he denied any of the

      allegations, or if he admitted them; Porta stated that he was “admitting them

      all.” Id. Porta explained that it was cold out the day that he was released from

      jail and that it was again cold the next day, and he “couldn’t make it back.” Id.

      at 6. After that, Porta “knew [he] was in trouble,” so he “just didn’t go” to the

      probation department. Id. at 6, 8. The trial court granted the petition to revoke

      probation and revoked Porta’s previously-suspended two-year sentence,

      ordering him to serve the remaining balance after time served, which was 223

      days, in the Lake County Jail. Id. at 4, 9. Porta now appeals.


                                     Discussion and Decision
[7]   Porta argues that the trial court abused its discretion when it revoked his

      probation and ordered him to serve his previously-suspended two-year

      sentence. “‘Probation is a matter of grace left to trial court discretion, not a

      right to which a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728,

      731 (Ind. Ct. App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007)), trans. denied. “Courts in probation revocation hearings ‘may consider

      any relevant evidence bearing some substantial indicia of reliability.’” Id.

      (quoting Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the

      discretion of the trial court to determine the conditions of a defendant’s

      probation and to revoke probation if the conditions are violated.” Id. Our

      court has said that “all probation requires ‘strict compliance’” because once the

      trial court extends this grace and sets its terms and conditions, the probationer

      is expected to comply with them strictly.” Id. at 731-32 (quoting Woods v. State,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019   Page 4 of 7
      892 N.E.2d 637, 641 (Ind. 2008)). “If the probationer fails to do so, then a

      violation has occurred.” Id.


[8]   Probation revocation is a two-step process. Johnson v. State, 62 N.E.3d 1224,

      1229 (Ind. Ct. App. 2016). First, the court must make a factual determination

      that a violation of a condition of probation actually occurred. Id. If a violation

      is proven, then the trial court must determine if the violation warrants

      revocation of the probation. Id. “‘However, even a probationer who admits the

      allegations against him must still be given an opportunity to offer mitigating

      evidence suggesting that the violation does not warrant revocation.’” Sullivan v.

      State, 56 N.E.3d 1157, 1160 (Ind. Ct. App. 2016) (quoting Ripps v. State, 968

      N.E.2d 323, 326 (Ind. Ct. App. 2012)).


[9]   If the trial court determines a probationer has violated a term of probation, then

      the court may impose one or more of the following sanctions: (1) continue the

      person on probation, with or without modifying or enlarging the conditions; (2)

      extend the person’s 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 initial sentencing. Ind. Code § 35-38-2-3(h).

      We review a trial court’s sentencing decisions for probation violations under an

      abuse of discretion standard. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.

      2017). 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 19A-CR-1573 | December 11, 2019   Page 5 of 7
[10]   Here, Porta admitted that he had violated his probation by committing all three

       of the violations alleged in the State’s petition to revoke probation. Therefore,

       the first step of the analysis was satisfied, and the trial court was able to proceed

       to the second step, where evidence was presented to determine whether the

       admitted violations warranted revocation of Porta’s probation. Johnson, 62

       N.E.3d at 1229. At the hearing, Porta testified that it was very cold on the day

       he was released from jail and was to report to the probation department. Tr.

       Vol. 2 at 6. He stated that it was 4:30 p.m. when he was released, and the

       probation department was closed. Id. at 7. The cold temperatures continued

       for several days, and Porta told the court that he “couldn’t make it back.” Id. at

       6. He further stated that, “after that time, [he] knew [he] was in trouble so [he]

       just didn’t go” to the probation department. Id. He then continued violating

       the requirements of his court-ordered probation requirements for two months

       until his arrest on March 29, 2019. Porta testified that, at the time of the

       hearing, he had employment waiting for him and would, therefore, have

       “employment income and transportation as a result.” Id. After hearing Porta’s

       testimony, the trial court determined that his violations warranted the

       revocation of his probation.


[11]   In its consideration of what sanction to impose, the trial court advised Porta

       that “based on your track record,” he was not a “good candidate for

       probation.” Id. at 8. The trial court had previously received a notification from

       Community Corrections, which informed the trial court that Porta was not an

       appropriate candidate for community corrections placement because in his prior

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019   Page 6 of 7
       participation in the work release program, he had received multiple rule

       violations and had maintained an outstanding balance of fees. Appellant’s App.

       Vol. II at 41. The trial court then determined that revoking the balance of

       Porta’s previously-suspended sentence was the appropriate sanction for Porta’s

       violations of probation. Tr. Vol. 2 at 8-9. In its determination of an appropriate

       sanction, the trial court was sympathetic to Porta’s situation but explained that

       it was required to base its decision on the evidence presented, including Porta’s

       poor record in community corrections placement. Id. at 8. We conclude that

       the trial court did not abuse its discretion when it revoked Porta’s probation and

       ordered him to serve his previously-suspended sentence.


[12]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1573 | December 11, 2019   Page 7 of 7
