Charles Ahnert v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2020
• Docket: 20A-CR-1329
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2020, 9:14 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles M. Ahnert, Jr., November 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1329 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-2001-F6-245

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1329 | Novembet 30, 2020 Page 1 of 5 Statement of the Case [1] Charles M. Ahnert, Jr. appeals his sentence following the trial court’s

revocation of his placement on probation. Ahnert presents a single issue for our

review, namely, whether the trial court abused its discretion when it ordered

him to serve 180 days of his previously suspended sentence in the Vigo County

Jail.

[2] We affirm.

Facts and Procedural History [3] In April 2020, Ahnert agreed to plead guilty to theft, as a Level 6 felony. In the

same plea agreement, Ahnert admitted that his actions amounted to a violation

of his probation following a prior conviction. On April 6, the trial court

accepted Ahnert’s plea and sentenced him to two and one-half years, all

suspended to probation. As a condition of his probation, the court ordered

Ahnert to submit to a substance abuse evaluation.

[4] On April 16, the State filed its first notice of probation violation. In that notice,

the State alleged that Ahnert had violated the terms of his probation when he

failed to report to adult probation and when he failed to complete a substance

abuse evaluation. Following an evidentiary hearing, the court found that

Ahnert had violated the terms of his probation. Accordingly, on June 8, the

court revoked a portion of Ahnert’s previously suspended sentence and ordered

him to serve ninety days in the Vigo County Jail. However, the court agreed to

modify Ahnert’s sentence if he were to be accepted into a sober living facility.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1329 | Novembet 30, 2020 Page 2 of 5 The same day, Ahnert was accepted into a facility, and the court modified his

sentence to time served and returned him to probation on the condition that he

reside at the sober living facility. Less than one week later, on June 14, Ahnert

left the facility and did not return. As a result, Ahnert was unsuccessfully

discharged from the facility.

[5] On June 15, the State filed its second notice of probation violation. In that

notice, the State alleged that Ahnert had violated the terms of his placement

when he failed to report to a scheduled telephonic meeting with his probation

officer on June 12 and when he was unsuccessfully discharged from the sober

living facility for absconding. Following an evidentiary hearing, the court

found that Ahnert had violated the terms of his placement, revoked his

probation, and ordered him to serve 180 days in the Vigo County Jail. This

appeal ensued.

Discussion and Decision [6] Ahnert appeals the court’s order that he serve 180 days of his previously

suspended sentence. Probation is a matter of grace left to trial court discretion.

Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a

defendant has violated a condition of his probation, the trial court may “[o]rder

execution of all or part of the sentence that was suspended at the time of initial

sentencing.” Ind. Code § 35-38-2-3(h)(3) (2020). We review the trial court’s

sentencing decision following the revocation of probation for an abuse of

discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of

discretion occurs “only where the trial court’s decision is clearly against the Court of Appeals of Indiana | Memorandum Decision 20A-CR-1329 | Novembet 30, 2020 Page 3 of 5 logic and effect of the facts and circumstances” before the court. Robinson v.

State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

trial court’s judgment to determine if there was substantial evidence of

probative value to support the court’s ruling. Id.

[7] On appeal, Ahnert does not dispute that he violated the terms of his probation

when he failed to attend a telephonic meeting with his probation officer and

when he left the sober living facility. But Ahnert contends that the court abused

its discretion when it ordered him to serve 180 days of his previously suspended

sentence because he had “explained” to the trial court that he only left the sober

living facility in order to visit his newborn son who was having emergency

surgery and because he was “unaware” that he had a scheduled meeting with

his probation officer. Appellant’s Br. at 8. In essence, Ahnert contends that the

court should have placed him back on probation because his violations were

“minor in nature” and because his testimony at the hearing was “mitigating

evidence.” Id. at 8, 9.

[8] However, it is the duty of the factfinder, not of this Court, to determine whether

to believe a witness’ testimony, even if uncontradicted. See Perry v. State, 78

N.E.3d 1, 8 (Ind. Ct. App. 2017). And, here, the court expressly rejected

Ahnert’s testimony. Indeed, at the conclusion of the hearing, the trial court

found that Ahnert’s “story ma[de] absolutely no sense.” Tr. at 15. Ahnert’s

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1329 | Novembet 30, 2020 Page 4 of 5 request for this Court to credit his testimony when the trial court did not

amounts to a request that we reweigh the evidence, which we cannot do.

[9] The trial court’s judgment is supported by substantial evidence and was within

the court’s sound discretion. Following Ahnert’s guilty plea, the court

sentenced him to two and one-half years, all suspended to probation, and

ordered him to submit to a substance abuse evaluation. But, just ten days later,

the State filed its first notice of probation violation after Ahnert had failed to

report to probation and after he had failed to complete the evaluation. As a

result of those violations, the court continued Ahnert on probation but with the

added condition that he reside at a sober living facility.

[10] However, within one week of his acceptance into the facility, he missed a

scheduled meeting with his probation officer and absconded from the facility.

Further, Ahnert’s conviction for theft in this cause constituted a violation of his

probation for a prior conviction and resulted in the court terminating his

placement on probation in that cause. In other words, despite the court’s prior

leniency, Ahnert has continued to violate the terms of his placement on

probation. Accordingly, the court’s order that Ahnert serve 180 days of his

previously suspended sentence is supported by the record and is well within the

trial court’s discretion. We therefore affirm the court’s judgment.

[11] Affirmed.

Riley, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1329 | Novembet 30, 2020 Page 5 of 5