Donnie Messer v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 26, 2013
• Docket: 44A03-1206-CR-303
• Status: Unpublished

Opinion

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

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana JONATHAN R. SICHTERMANN Deputy Attorney General Indianapolis, Indiana

Mar 26 2013, 9:26 am IN THE COURT OF APPEALS OF INDIANA

DONNIE MESSER, ) ) Appellant-Defendant, ) ) vs. ) No. 44A03-1206-CR-303 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAGRANGE CIRCUIT COURT The Honorable J. Scott Vanderbeck, Judge Cause No. 44C01-0702-FA-2

March 26, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

Donnie L. Messer (“Messer”) pleaded guilty to Class B felony manufacturing

methamphetamine and was sentenced to twenty years with ten years suspended. He was

also placed on probation for ten years. Subsequently, Messer admitted to violating his

probation by committing Class A felony dealing in methamphetamine. The trial court

revoked his probation and ordered him to serve ten years in the Indiana Department of

Correction. Messer now appeals and argues that his probation was improperly revoked.

We affirm.

Facts and Procedural History

On February 26, 2007, Messer was charged with Class A felony possession of

methamphetamine, Class B felony manufacturing methamphetamine, and Class D felony

dumping controlled substance waste. On November 26, 2007, Messer pleaded guilty to

Class B felony manufacturing methamphetamine, and the State dismissed the other

charges. On January 7, 2008, the trial court sentenced Messer to twenty years with ten

years suspended, and he was placed on probation for ten years. On March 21, 2011, the

trial court suspended the balance of Messer’s sentence and released him early on

probation.

On April 14, 2011, a Notice of Probation Violation was filed, which alleged that

Messer violated his probation by committing Class A felony dealing in

methamphetamine. On June 13, 2012, Messer admitted that he violated his probation.1

The trial court revoked his probation and ordered him to serve ten years in the Indiana

Department of Correction. Messer now appeals.

1 Messer had previously pleaded guilty to the underlying criminal offense. Tr. p. 2.

2 Discussion and Decision

The trial court’s decision whether to revoke probation is reviewed for an abuse of

discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of

discretion occurs if the decision is against the logic and effect of the facts and

circumstances before the court.” Id. If a person is found to have violated the terms of his

probation, the trial court can “[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(g)(3).

Here, Messer admitted he violated his probation by committing the criminal

offense of dealing in methamphetamine. Messer cites only one case in his brief, Woods

v. State, for the proposition that “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.” Woods v. State, 892 N.E.2d 637, 640 (Ind.

2008). While Messer is correct that a probationer must given the opportunity to offer

mitigating evidence, his reliance on this case is misplaced. In Woods, the defendant was

not allowed the opportunity to explain why he had violated probation, and our supreme

court held that “due process requires that a defendant be given the opportunity to explain

why even this final chance is deserving of further consideration.” Id. at 641 (emphasis

added). To the extent Messer is arguing that he was denied due process, we note that at

the probation revocation hearing, Messer was given ample opportunity to explain why his

probation should not be revoked. Tr. p. 4-5. He explained to the court mitigating

circumstances and his desire to enter inpatient drug rehabilitation. Id. Thus, Messer was

not denied due process.

3 Messer also argues that revocation of probation was not warranted because

“alternatives to incarceration were available[,]” namely an inpatient drug treatment

program. Appellant’s Br. at 4. Messer cites no authority for this proposition, and,

therefore, has waived this argument on appeal. Ind. App. Rule 46(A)(8)(a); see also

Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives

any issue raised on appeal where the party fails to develop a cogent argument or provide

adequate citation to authority and portions of the record.”).

Waiver notwithstanding, we note that Messer’s current offense of dealing in

methamphetamine was directly related to and, indeed, one step more serious than, the

underlying offense for which he was placed on probation, i.e. manufacturing

methamphetamine. Moreover, “[p]robation is a matter of grace left to trial court

discretion, not a right to which a criminal defendant is entitled[,]” and we give

“considerable leeway” to a trial court in deciding how to proceed. Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). Here, the trial court listened to Messer’s explanation of

mitigating circumstances and noted that it had previously modified Messer’s sentence to

give him a “fresh start.” Tr. p. 5. For all these reasons, we defer to the trial court’s

decision to revoke probation and conclude the trial court did not abuse its discretion in

revoking Messer’s probation.

Affirmed.

BAKER, J., and MAY, J., concur.