James T. Reese v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2015
• Docket: 73A01-1408-CR-341
• Status: Published

Opinion

MEMORANDUM DECISION Jan 29 2015, 9:36 am 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 Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James T. Reese, January 29, 2015

Appellant-Defendant, Court of Appeals Cause No. 73A01-1408-CR-341 v. Appeal from the Shelby Superior Court The Honorable Jack A. Tandy, State of Indiana, Judge Appellee-Plaintiff Cause No. 73D01-1208-FC-43

Crone, Judge.

Case Summary [1] James T. Reese appeals the trial court’s order revoking his probation and

remanding him to the Indiana Department of Correction (“DOC”) for thirty of

the thirty-six months of his suspended sentence stemming from his conviction

Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015 Page 1 of 5 for class C felony intimidation. Finding that the trial court acted within its

discretion, we affirm.

Facts and Procedural History

[2] In November 2012, Reese pled guilty to class C felony intimidation. The trial

court sentenced him to five years, with two years executed and the remainder

suspended to probation.

[3] In August 2013, the State filed a petition to revoke Reese’s probation, citing

marijuana use, a failure to answer reasonable questions from his probation

officer, and a failure to attend scheduled meetings with his probation officer.

Reese admitted to the violations during a November 2013 revocation hearing.

The trial court continued Reese’s probation, subject to the additional conditions

that he complete sixty hours of community service, obtain an ADA evaluation,1

and comply with all recommendations.

[4] In February 2014, the State filed a second probation revocation petition against

Reese, alleging that he tested positive for methamphetamine (“meth”), was not

forthright about his drug use, and failed to begin his community service hours.

1 We note that the record does not specifically define the term “ADA.”

Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015 Page 2 of 5 Two months later, the State filed an addendum alleging that Reese had again

tested positive for meth. At his July 2014 probation revocation hearing, Reese

admitted to the violations contained in both the petition and the addendum.

The trial court issued an order revoking his probation and remanding him to the

DOC for thirty of the thirty-six months of his suspended sentence.

[5] Reese now appeals. Additional facts will be presented as necessary.

Discussion and Decision [6] Reese maintains that the trial court abused its discretion in ordering him to

execute thirty months of his thirty-six-month suspended sentence after his

second round of probation violations. Probation is a matter of grace left to the

trial court’s sound 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

determines the conditions of probation and may revoke probation if the

probationer violates those conditions. Id. Proof of a single violation is

sufficient to permit a trial court to revoke probation. Beeler v. State, 959 N.E.2d

828, 830 (Ind. Ct. App. 2011), trans. denied.

[7] Probation revocation is a two-step process, wherein the trial court first makes a

factual determination as to whether the probationer violated the terms of his

probation. Then, if a violation is found, the court determines whether the

violation warrants revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015 Page 3 of 5 [8] A trial court’s sentencing decisions for probation violations are reviewable for

an abuse of discretion. Prewitt, 878 N.E.2d at 188. An abuse of discretion

occurs where the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before it. Id.

[9] Here, Reese admitted to all the violations alleged in the State’s second

revocation petition and the addendum to it. These include using and

consuming meth, providing untruthful information to his probation officer, and

failing to perform or even begin his sixty hours of community service. The only

allegation for which he offered any explanation was his community service,

claiming that he lacked the funds necessary to pay the $100 fee.

[10] Because Reese admitted to the violations, the trial court was left to determine

which of the following actions to take: (1) continue Reese’s probation, with or

without modifying or enlarging the conditions; (2) extend his probationary

period for not more than one year beyond the original probationary period;

and/or (3) order execution of all or part of the sentence that was suspended at

the time of initial sentencing. Ind. Code § 35-38-2-3(h).

[11] As noted, this is Reese’s second probation revocation proceeding. During the

hearing on the State’s first petition, Reese admitted to the violations, and the

trial court opted to continue his probation with enlarged conditions, including

sixty hours of community service and an ADA evaluation. In the two and a

half months that followed, Reese tested positive for meth and failed to perform

or even begin performance of his court-ordered community service. He was

Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015 Page 4 of 5 untruthful with his probation officer concerning his drug use and continued to

use meth, even though the second petition to revoke his probation was already

pending. Again, he admitted to the allegations, and this time, the trial court

imposed a different option within the statutory framework – execution of most

but not all of his suspended term. Ind. Code § 35-38-2-3(h)(3).

[12] In sum, the trial court granted Reese leniency when it continued his probation

after his first round of violations. Instead of responding positively to the grace

afforded him, Reese continued to engage in prohibited conduct (taking drugs)

and neglected to engage in positive conduct (serving his community). He has

an extensive adult and juvenile criminal record and has repeatedly

demonstrated that he is unwilling to comply with the terms of his probation and

with the law in general. Simply put, these patterns of conduct do not portend

success for him outside the confines of the DOC. Based on the foregoing, we

conclude that the trial court acted within its discretion in revoking Reese’s

probation and remanding him to the DOC for thirty months of his remaining

term. Accordingly, we affirm.

[13] Affirmed.

Friedlander, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 73A01-1408-CR-341| January 29, 2015 Page 5 of 5