                                                             FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  May 24 2012, 8:29 am
court except for the purpose of establishing
the defense of res judicata, collateral
                                                                  CLERK
estoppel, or the law of the case.                               of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

COREY L. SCOTT                                  GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                STEPHEN R. CREASON
                                                Chief Counsel
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES HUNTER,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1111-CR-1000
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Petitioner.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Patricia J. Gifford, Judge
                Cause Nos. 49G04-0112-CF-229242, 49G04-0112-CF-229043



                                       May 24, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Charles Hunter appeals following the trial court’s

revocation of his probation and imposition of the five-year suspended portion of his

sentence. Upon appeal, Hunter challenges the sufficiency of the evidence to support the

revocation and claims that the trial court abused its discretion in imposing his full back-

up time. We affirm.

                            FACTS AND PROCEDURAL HISTORY

       On June 12, 2002, Hunter was convicted of Class C felony robbery and found to

be a habitual offender, in Cause Number 49G04-0112-CF-229242 (“Cause No. 242”).

Hunter was sentenced to serve twenty years, with five years suspended to probation.

Hunter’s conviction in Cause No. 242 was entered pursuant to a plea agreement in which

he also pled guilty to three counts of Class C felony robbery and to being a habitual

offender in Cause Number 49G04-0112-CF-229043 (“Cause No. 043”).1                                     Hunter

received an aggregate sentence of twenty years, with five years suspended to probation,

in Cause No. 043. Hunter’s probation for both cases was ordered to run concurrently.

Hunter began his probationary term on August 7, 2011. An express term of Hunter’s

probation was that he not commit a criminal offense.

       On October 4, 2011, the State filed a notice of probation violation alleging that

Hunter had been arrested on September 27, 2011, and charged with Class D felony

theft/receiving stolen property, Class A misdemeanor resisting law enforcement, and

Class B misdemeanor battery under Cause Number 49F18-1109-FD-69106. (“Cause

No. 106”). At an October 5, 2011 initial hearing, Hunter volunteered that he wished to
       1
           In exchange, the State agreed to dismiss its charges against Hunter in five other cases.


                                                      2
take full responsibility for his actions, explaining that he had panicked when his bills

began to stack up. Thereafter, the trial court appointed counsel, at which point defense

counsel indicated that Hunter wished to admit the allegations against him that day. The

trial court confirmed with Hunter that he was admitting that he had been arrested and

charged in Cause No. 106, after which it found Hunter had admitted to violating the

conditions of his probation.

       The hearing did not end there, however. The Probation Department then outlined

the substance of the allegations against Hunter, specifically that he had stolen $597

worth of liquor from Kroger, run from officers approaching him as he left the store, and

pushed a store manager. Hunter again admitted responsibility and conceded that he had

intended to sell the alcohol, which he agreed would qualify as another violation of the

law. The trial court again found that Hunter had admitted his probation violation,

revoked the probation in each of Cause Nos. 242 and 043, and ordered him to serve two

concurrent five-year terms in the Department of Correction. This appeal follows.

                           DISCUSSION AND DECISION

                                  I.     Revocation

       Upon appeal, Hunter challenges the sufficiency of the evidence to support the

revocation of his probation. A probation hearing is civil in nature, and the State need

only prove the alleged violations by a preponderance of the evidence. Cox v. State, 706

N.E.2d 547, 551 (Ind. 1999). The decision to revoke probation is within the sole

discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639-40 (Ind. 2008). Its

decision is reviewed on appeal for abuse of that discretion. Id. On review, we consider

                                           3
only the evidence most favorable to the judgment without reweighing that evidence or

judging the credibility of the witnesses. Id. If there is substantial evidence of probative

value to support the trial court’s decision that a defendant has violated any terms of

probation, the reviewing court will affirm its decision to revoke probation. Id. at 639-40.

       Probation revocation is a two-step process. Id. at 640. First, the court must make

a factual determination that a violation of a condition of probation actually occurred. Id.

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

revocation of the probation. Id. 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. Id.

       In challenging the sufficiency of the evidence, Hunter argues that he merely

admitted to being arrested and charged, not to the underlying facts of his alleged crimes.

In making this argument, Hunter points to Martin v. State, 813 N.E.2d 388, 390-91 (Ind.

Ct. App. 2004), wherein this court reversed a probation revocation on the grounds that it

was based upon the defendant’s mere admissions to being arrested and charged. As the

Martin court observed, an arrest alone does not warrant the revocation of probation. Id.

(citing Hoffa v. State, 267 Ind. 133, 135, 368 N.E.2d 250, 252 (1977)). Similarly, a

probation revocation may not rest on the mere filing of charges. Id. at 391. Instead, the

State must establish by a preponderance of the evidence that a commission of a crime

occurred. See Cox, 706 N.E.2d at 551.

       While Hunter’s initial admissions were perhaps only to having been arrested and

charged, he subsequently admitted “total responsibility” for his actions at a point in the

                                             4
hearing after the Probation Department had read the particulars of the allegations against

him. Tr. p. 8. In addition, Hunter admitted that he had intended to sell the alcohol he

was alleged to have taken, and he agreed that this would “again” violate the law,

establishing his concession that taking the alcohol had also been in violation of the law.

Importantly, Hunter made these admissions within the context of having admitted that he

panicked when his bills piled up. Given the unequivocal nature of Hunter’s admissions,

we are persuaded that sufficient evidence exists to demonstrate by a preponderance of

the evidence that he had committed theft.

       Hunter also argues, based upon this court’s recent decision in Heaton v. State,

959 N.E.2d 330, 332 (Ind. Ct. App. 2011), reh’g denied, trans. pending, that the trial

court improperly based its judgment upon an outdated probable-cause standard rather

than the statutory preponderance-of-the-evidence standard. See Ind. Code § 35-38-2-

3(e) (2011).2    Unlike in Heaton, here there was no indication by the trial court that it

was basing its findings upon a probable-cause standard. The trial court simply listened

to the evidence and found that a violation had been established.              Given Hunter’s

admissions, the trial court was well within its discretion to conclude that a violation had

occurred under a preponderance standard.

                                       II.    Sentence

       Hunter also challenges the trial court’s imposition of his full five-year suspended

term. Probation is a matter of grace left to the trial court’s discretion, not a right to

       2
         Ind. Code § 35-38-2-3 has since been amended, see P.L. 147-2012, H.E.A. 1200, and will
become effective July 1, 2012. The amendments do not affect the preponderance standard unless the
person charged admits his probation violation and requests to waive his hearing.


                                               5
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 conditions are violated. Id. Once a trial court has exercised its grace by ordering

probation rather than incarceration, the judge should have considerable leeway in

deciding how to proceed. Id. If this decision 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.   Accordingly, a trial court’s sentencing

decisions for probation violations are reviewable using the abuse of discretion standard.

Id. An abuse of discretion occurs when the decision is clearly against the logic and

effect of the facts and circumstances. Id.

       Hunter points to his employment, church attendance, family support system, and

wish to accept responsibility for his actions in claiming that the trial court should not

have imposed his full backup time. Hunter claims that the trial court’s stated policy of

“you get arrested, you’re gone,” Tr. p. 13, did not accurately reflect the options available

for probation violations. See Ind. Code § 35-38-2-3(g) (permitting trial court to continue

person on probation with or without modifying conditions, extend the probationary

period for not more than one year, or order execution of all or part of the suspended

sentence). Were Hunter a first-time offender, this argument might be more persuasive.

But, as the trial court obviously recognized, Hunter is a seasoned criminal, having twice

pled to habitual offender status. Moreover, within less than two months after his release

from incarceration, Hunter was already admittedly violating the law. Given Hunter’s



                                               6
recidivism, we see no abuse of discretion in the trial court’s zero-tolerance approach in

imposing the full five-year backup term.

      The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




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