Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                       FILED
any court except for the purpose of                       Feb 14 2013, 8:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                     CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JANE ANN NOBLITT                                  GREGORY F. ZOELLER
Columbus, Indiana                                 Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

OMAR G. BURTON,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 03A01-1206-CR-263
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


               APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
                        The Honorable Chris D. Monroe, Judge
                           Cause No. 03D01-9605-CF-454



                                      February 14, 2013


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                               STATEMENT OF THE CASE

       Omar Burton appeals the sentence imposed by the trial court following the

revocation of his probation. We affirm.

                                           ISSUE

       Burton raises one issue, which we restate as whether the trial court abused its

discretion by ordering him to serve the balance of his suspended sentence following the

revocation of his probation.

                        FACTS AND PROCEDURAL HISTORY

       In 1996, Burton was convicted of Class B felony burglary and Class D felony

theft. The trial court imposed concurrent sentences of twenty years for the burglary and

three years for the theft, with five years of the aggregate sentence suspended to probation.

The court noted that Burton was being sentenced in three other cause numbers on the

same day and ordered all of the sentences to run consecutively in a specific sequence,

with the sentence in this cause to be served third in line.

       In November 2008, Burton filed a motion under all four cause numbers to set a

hearing and modify his sentences.        The trial court ordered Burton to clarify which

sentences had been served and which sentences he sought to modify. Burton informed

the court that he was currently serving the executed sentence in this cause, with two and a

half years left to serve, and that he still had one more executed sentence and two terms of

probation to complete. At a hearing in March 2009, the court modified Burton’s sentence

in this cause by suspending the balance of his sentence and by placing him on probation

for four years, consecutive to the probation ordered in the last cause number to be served.

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       The State filed a petition to revoke Burton’s probation in June 2010. In the

petition, the State alleged that Burton failed to report to two probation appointments, left

the state without obtaining permission from the court and was currently residing in

Wisconsin, failed to report an address change, failed to report he had contacts with

Wisconsin police, and associated with individuals on probation. At a hearing in April

2011, Burton admitted that he violated his probation by failing to report to the

appointments, leaving the state without permission, and failing to report his address

change. The court gave Burton credit for time served, returned him to probation, and

ordered him to pay the extradition costs.

       One month later in May 2011, Burton entered into an administrative agreement

with the probation department in which he admitted that he violated his probation by

using methamphetamine and agreed to be placed in a residential program.

       In November 2011, the State filed a second petition to revoke Burton’s probation.

In the petition, the State alleged that Burton admitted to using methamphetamine,

benzodiazepines, and marijuana in October, left his home without authorization from

community corrections and his whereabouts were unknown, and was in arrears on over

$1600 in fees. At a hearing in February 2012, Burton admitted that he violated his

probation by using methamphetamine, benzodiazepines, and marijuana.              The court

imposed the original twenty-year aggregate sentence with no time suspended. It gave

Burton credit for all the time previously served in this cause at the Department of

Correction before the sentence modification, 306 credit days for time spent in



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confinement “as a result of this charge,”1 and 244 credit days for time served in the

residential program. Appellant’s App. p. 212. Burton now appeals.

                               DISCUSSION AND DECISION

       Burton contends that the trial court abused its discretion by ordering him to serve

the balance of his suspended sentence following the revocation of his probation. 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).

       This was Burton’s third admitted probation violation and the second violation in

which he admitted using methamphetamine. Despite being afforded leniency with his

previous violations, he failed to adjust his behavior.

       Burton nonetheless argues that he has shown he can be successful if given

direction and structure, but the probation department failed to offer him temporary

options in residential and work release programs when he lost his job and apartment. His

probation officer, however, stated that Burton never told him he was going to lose his

apartment and never asked about alternative placements such as work release. When

asked about changing residences, Burton testified, “[O]nce that progressed I just kind of




1
  The court specified the dates of confinement, which include time periods before the State’s second
petition to revoke Burton’s probation.
                                                 4
gave up, figured I would wait until they caught me and then I would deal with what I had

to deal with then.” Tr. p. 151.

       Burton also argues that he took responsibility for his probation violations and that

his transition to living a clean life was bound to be rough. He further argues that, since

he was given credit for time served and returned to probation following his first probation

violation, the trial court should have “step[ped] up the consequences to match Mr.

Burton’s learning curve” instead of ordering him to serve the balance of his suspended

sentence. Appellant’s Br. p. 14. We cannot agree. Probation is a matter of grace and a

conditional liberty which is a favor, not a right. Cooper v. State, 917 N.E.2d 667, 671

(Ind. 2009). Burton was given an opportunity through probation to get assistance with

his transition. He squandered that opportunity by repeatedly violating his probation.

       The trial court did not abuse its discretion by ordering him to serve the balance of

his suspended sentence.

                                     CONCLUSION

       We therefore affirm the trial court’s judgment.

FRIEDLANDER, J., and BROWN, J., concur.




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