Bradley Dyer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 12, 2016
• Docket: 69A05-1604-CR-888
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:51 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bradley Dyer, August 12, 2016 Appellant-Defendant, Court of Appeals Case No. 69A05-1604-CR-888 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff Judge Trial Court Cause No. 69D01-1312-FD-179

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016 Page 1 of 4 Case Summary [1] Bradley Dyer appeals the trial court’s revocation of his probation. The sole

issue presented for our review is whether the trial court abused its discretion

when it revoked Dyer’s probation and ordered him to serve his entire suspended

sentence. Finding no abuse of discretion, we affirm.

Facts and Procedural History [2] In December 2013, Dyer had a fistfight with a police officer who intervened

when he realized that Dyer was about to hit a woman. Dyer was charged with

class D felony battery on a law enforcement officer, class D felony resisting law

enforcement, and class B misdemeanor public intoxication. In November 2014,

Dyer pled guilty to battery on a law enforcement officer pursuant to a plea

agreement under which he would receive a thirty-six-month sentence with

twenty-four months suspended to probation and the State would dismiss the

remaining charges. The trial court sentenced Dyer in accordance with the plea

agreement.

[3] In March 2016, while on probation, Dyer was charged with class A

misdemeanor operating a vehicle while intoxicated endangering a person. The

State filed a petition to revoke his probation. At the revocation hearing, Dyer

admitted that he violated probation by committing a new criminal offense. The

trial court revoked Dyer’s probation and ordered him to serve his twenty-four-

month suspended sentence. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016 Page 2 of 4 Discussion and Decision [4] “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). The trial court has discretion to determine the conditions of probation

and may revoke probation if the conditions are violated. Heaton v. State, 984

N.E.2d 614, 616 (Ind. 2013).

[5] Probation revocation involves a two-step process. “First, the court must make a

factual determination that a violation of a condition of probation actually

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

violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d

533, 537 (Ind. Ct. App. 2009) (citation omitted), trans. denied. The probationer

must be given an opportunity to offer evidence that mitigates his violation. Id.

If the court determines that probation has been violated it may continue the

person on probation, extend the probationary period for no more than a year

beyond the original probationary period, or order execution of all or part of the

previously suspended sentence. Ind. Code § 35-38-2-3(h). Where a trial court

has exercised its grace in granting a defendant probation rather than

incarceration, it has considerable leeway in deciding how to proceed when the

defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at

188. We review a trial court’s decisions to revoke probation for an abuse of

discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse

of discretion occurs when the court’s decision is clearly against the logic and

effect of the facts and circumstances. Prewitt, 878 N.E.2d at 188.

Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016 Page 3 of 4 [6] Citing Prewitt, Dyer contends that the execution of his entire suspended

sentence was not the “most effective and appropriate” sanction and asks that

we reduce his sentence to one year in jail, which would allow him “time to

consider the error of his ways but permit him to be released in a reasonable

amount of time so he could begin an addiction treatment program.”

Appellant’s Br. at 8. Neither Prewitt nor Indiana Code Section 35-38-2-3

imposes a “most effective and appropriate” requirement. Dyer directs us to

self-serving testimony during the revocation hearing that he “messed up” and

“was trying to do right and get home and just trying to take care of [his] kids,”

which the trial court considered as a mitigating circumstance. Tr. at 17.

However, Dyer’s behavior belies his claim because he continues to engage in

illegal behavior when he has consumed alcohol. Under the circumstances, we

cannot say that the trial court abused its discretion in revoking Dyer’s probation

and ordering him to serve his entire suspended sentence. Therefore, we affirm.

[7] Affirmed.

Kirsch, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016 Page 4 of 4