Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                     Mar 13 2013, 8:45 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                                  GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  AARON J. SPOLARICH
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TROY FARRIS,                                      )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 49A04-1207-CR-372
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable William Nelson, Judge
                     The Honorable Valerie Horvath, Master Commissioner
                             Cause No. 49G17-1107-FD-52788


                                        March 13, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Troy Farris appeals the 180-day sentence imposed by the trial court following his

probation violation. We affirm.

                                          Issue

      The sole issue is whether the trial court abused its discretion in ordering Farris to

serve a 180-day sentence.

                                          Facts

      On October 12, 2011, Farris pled guilty to one count of Class A misdemeanor

trespass, in relation to an incident involving Farris’s ex-girlfriend and their child. The

plea agreement’s terms provided for a sentence of 365 days, with sixty-two days executed

(which had already been served) and 303 days suspended to be served on probation.

Among the terms of Farris’s probation were that he not be charged with any new criminal

offense, that he submit to random testing for alcohol use, that he undergo substance abuse

treatment, and that he complete domestic violence counseling.

      On January 31, 2012, Marion County Community Corrections, which was

monitoring Farris’s alcohol use, filed a notice alleging that he had failed to submit

required breath samples on seven occasions. On February 10, 2012, the Marion County

Probation Department (“Probation Department”) filed a notice alleging that Farris had

been discharged from his substance abuse treatment program for failing to attend. On

March 2, 2012, the trial court found Farris had violated probation but continued him on

probation under “strict compliance.” App. p. 15.

                                            2
       The Probation Department subsequently filed new notices of violations of

probation by Farris on April 26, 2012, May 1, 2012, and May 3, 2012. The allegations

were that Farris had twice failed to submit to urine screens, that he had failed to complete

domestic violence counseling, and that he had been arrested in Hamilton County for

Class D felony intimidation. At a hearing on July 13, 2012, Farris admitted to having

been charged with Class D felony intimidation, and the State did not pursue the other

allegations. Additionally, although Farris did not admit to having been convicted of this

offense, there was evidence he had recently been convicted of some offense as he

admitted to currently serving a two-year sentence in the Department of Correction. The

Probation Department recommended revocation of Farris’ probation and that he be

ordered to serve 180 days of his suspended sentence. Defense counsel stated that she

thought “Probation’s offer is reasonable” but that “Mr. Farris however might disagree

with that” and requested a sentence of ninety days. Tr. p. 5. Ultimately, the trial court

revoked Farris’s probation and ordered him to serve 180 days. Farris now appeals.

                                            Analysis

       Farris challenges the sentence imposed by the trial court upon his admission that

he violated probation by having been charged with a new offense.1 “Probation is a matter

of grace left to trial court discretion, not a right to which a criminal defendant is entitled.”

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Upon a finding of a probation


1
  Although Farris’ term is only 180 days, and that time period has passed since July 13, 2012, his
probation revocation sentence is being served consecutive to his existing two-year sentence in the
Department of Correction. Thus, Farris’ challenge to his sentence is not moot.
                                                3
violation, a trial court may (1) continue the defendant on probation; (2) extend the

probationary period for not more than one year beyond the original period; and/or (3)

order all or part of a previously suspended sentence to be executed. Puckett v. State, 956

N.E.2d 1182, 1186 (Ind. Ct. App. 2011). When a trial court exercises the third option, a

defendant is entitled to challenge the sentence under an 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.” Prewitt, 878 N.E.2d at 188. “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.” Id.

       Here, Farris was charged with committing a felony while on probation for a

misdemeanor. There also was evidence that he had recently been sentenced to a two-year

term in the Department of Correction at the time of the hearing in this case. The

commission of a new offense while on probation goes far beyond a mere technical

violation and is quite egregious. Furthermore, the trial court had previously exercised its

discretion and grace to continue Farris on probation in March 2012, when it found he had

violated probation but continued him on probation anyway, albeit under “strict

compliance.” App. p. 15. Despite this clear warning from the trial court, Farris shortly

thereafter again violated his probation by being charged with another crime. Finally, the

trial court is only requiring Farris to serve 180 days of his 303-day suspended sentence,

an option that trial counsel for Farris found to be “reasonable.” Tr. p. 5. We likewise

find it to be reasonable and not an abuse of discretion.

                                             4
       Farris also suggests that the “very brief hearing” conducted by the trial court was

insufficient. Appellant’s Br. p. 4. However, Farris makes no argument that his due

process rights were violated by the brevity of the hearing or that he was not provided an

opportunity to present evidence on his own behalf. Regardless of how long the hearing

was, the evidence before us more than justifies the trial court’s decision to impose a 180-

day sentence.

                                       Conclusion

       The trial court’s imposition of a 180-day sentence upon Farris’s admission that he

violated probation was not an abuse of discretion. We affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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