Erik Peetz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 27, 2017
• Docket: 03A01-1701-CR-237
• 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 Jul 27 2017, 10:37 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 Christopher L. Clerc Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Erik Peetz, July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 03A01-1701-CR-237 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1601-F6-110

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 1 of 5 Case Summary and Issue [1] Erik Peetz appeals the trial court’s finding he had violated the terms of his

probation and order that he serve his suspended sentence in the Indiana

Department of Correction (“DOC”), raising two issues for our review, which

we consolidate and restate as whether the trial court abused its discretion in

revoking his probation. Concluding the trial court did not abuse its discretion,

we affirm.

Facts and Procedural History [2] In 2015, Peetz was convicted of theft and conversion and sentenced to one year

in the DOC, fully suspended to probation. In early 2016 and while Peetz was

still serving probation, the State charged Peetz under this cause with several

new offenses, including possession of methamphetamine and possession of a

syringe as Level 6 felonies. On September 27, 2016, Peetz was convicted of

possession of a syringe as a Level 6 felony and the trial court sentenced him to

two years in the DOC, fully suspended to probation.

[3] On October 13, 2016, the State filed a notice of a probation violation in this

cause, alleging Peetz failed to attend probation orientation on two occasions,

travelled out of state without permission, and failed to pay probation fees. The

trial court then issued a warrant for Peetz’s arrest. Peetz had knowledge of the

warrant but did not turn himself in. At some point, law enforcement located

Peetz, who fled on foot and hid behind a dumpster. Peetz was arrested.

Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 2 of 5 [4] At a hearing on December 15, 2016, Peetz admitted to violating the conditions

of his probation as alleged in the notice of probation violation. Relevant below,

Peetz also addressed how he previously violated the probation he was serving

from his theft and conversion convictions by using methamphetamine in 2015.1

Following the hearing, the trial court issued an order revoking Peetz’s probation

and ordering him to serve the balance of his sentence in the DOC, explaining,

“[Peetz] admits that he is in violation of his probation by using

Methamphetamine on or about the 14th day of May, 2015.” Appellant’s

Appendix, Volume 2 at 9. On January 4, 2016, the trial court issued an abstract

of judgment explaining Peetz’s probation was revoked due to “Technical

Violations: Failure to Report.” Id. at 7. This appeal ensued.

Discussion and Decision I. Standard of Review [5] Probation is a matter of grace left to trial court discretion and an appeal from

the revocation of probation is reviewed for an abuse of discretion. Heaton v.

State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs if the trial

court’s decision is clearly against the logic and effect of the facts and

circumstances or if the trial court misinterprets the law. Id. “Probation

revocation is a two-step process. First, the trial court must make a factual

1 It is not clear from the record whether this conviction resulted in the revocation of Peetz’s probation under the previous cause.

Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 3 of 5 determination that a violation of a condition of probation actually

occurred. Second, if a violation is found, then the trial court must determine

the appropriate sanctions for the violation.” Id. (citation omitted). As to the

first step, the State must prove the defendant violated a condition of probation

by a preponderance of the evidence. Id. at 617.

II. Probation Violation [6] Peetz argues the trial court erred in finding he violated probation on the basis he

admitted to using methamphetamine in 2015 in a separate cause and therefore

there is insufficient evidence to support a finding that he violated probation in

this cause. We disagree.

[7] At the outset, it appears the trial court was confused in noting Peetz’s

methamphetamine use in 2015 supported the revocation of his probation in this

cause because: 1) Peetz was not ordered to begin serving probation in this cause

until September 2016, and 2) the abstract of judgment stated Peetz’s failure to

report was the basis for the revocation. In any event, the record demonstrates

Peetz admitted to violating multiple conditions of his probation, including

failing to report to orientation on two occasions and failing to seek permission

before travelling out of state. Thus, although the trial court’s order erroneously

cites to Peetz’s 2015 methamphetamine use, there is sufficient evidence in the

record to support the trial court’s finding that Peetz violated probation on other

bases.

Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 4 of 5 III. Sanction [8] Peetz also argues the trial court abused its discretion in ordering him to serve

the balance of his sentence in the DOC. Specifically, he contends the trial court

failed to take into consideration certain mitigating circumstances. However,

“trial courts are not required to balance aggravating or mitigating circumstances

when imposing sentence in a probation revocation proceeding.” Treece v. State,

10 N.E.3d 52, 59 (Ind. Ct. App. 2014) (citation omitted), trans. denied. In

addition, Peetz violated at least three separate conditions of probation within

just days of being placed on probation, failed to turn himself in to law

enforcement despite knowing a warrant was out for his arrest, and attempted to

flee from law enforcement. The trial court did not abuse its discretion in

ordering Peetz to serve the balance of his sentence in the DOC.

Conclusion [9] We conclude the trial court did not abuse its discretion in revoking Peetz’s

probation. Accordingly, we affirm.

[10] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-237 | July 27, 2017 Page 5 of 5