Jonathan Diaz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2015
• Docket: 29A02-1502-CR-112
• Status: Published

Opinion

MEMORANDUM DECISION Jul 31 2015, 10:25 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 Lawrence M. Hansen Gregory F. Zoeller Hansen Law Firm Attorney General of Indiana Noblesville, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jonathan Diaz, July 31, 2015

Appellant-Defendant, Court of Appeals Case No. 29A02-1502-CR-112 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Paul A. Felix, Judge Trial Court Cause No. Appellee-Plaintiff. 29C01-1208-FC-8331

Pyle, Judge.

Statement of the Case [1] Jonathon Diaz (“Diaz”) appeals the trial court’s order revoking his probation

and ordering him to serve 490 days of his previously 550-day suspended

Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 1 of 5 sentence. He argues that this sentence is inappropriate pursuant to Appellate

Rule 7(B). Because we review a trial court’s imposition of a previously

suspended sentence for an abuse of discretion, and we find no such abuse in this

case, we affirm the trial court’s revocation of Diaz’s probation.

[2] Affirmed.

Issue Whether the trial court abused its discretion by ordering Diaz to serve part of his previously suspended sentence.

Facts [3] In January 2013, Diaz pled guilty to Class D felony operating a motor vehicle

as a habitual traffic violator in exchange for the State’s dismissal of his other

charges of Class C felony operating a motor vehicle after forfeiture of license

and Class B misdemeanor false informing. Thereafter, the trial court imposed a

sentence of 1,095 days, with 545 days executed,1 550 days suspended, and 365

days of probation.

[4] On August 28, 2014, the State filed a notice of probation violation, alleging that

Diaz had violated his probation by: (1) failing to report to the Probation

Department as directed; and (2) committing new offenses—Class C felony

operating a motor vehicle after forfeiture of his license for life and Class D

1 The trial court ordered Diaz to serve 365 days of his executed sentence in the Department of Correction followed by 180 days in the Hamilton County Work Release Program.

Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 2 of 5 felony identity deception in Howard County in February 2014—and failing to

report them to the Probation Department within 48 hours.

[5] On January 22, 2015, the trial court held a probation hearing, during which

Diaz admitted that he had violated his probation as alleged.2 The trial court

determined that Diaz had violated his probation and ordered him to serve 490

days of his previously 550-day suspended sentence. Diaz now appeals.

Decision [6] Diaz argues that the trial court erred by ordering him to serve part of his

previously suspended sentence in the Department of Correction. Diaz suggests

that we should apply the standard of review from a sentence review under

Indiana Appellate Rule 7(B). Our Indiana Supreme Court, however, has

explained that “[t]his is not the correct standard to apply when reviewing a

sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184,

188 (Ind. 2007).

[7] Upon determining that a probationer has violated a condition of 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).

“Once a trial court has exercised its grace by ordering probation rather than

incarceration, the judge should have considerable leeway in deciding how to

2 Diaz indicated that, in regard to the new offenses, he had pled guilty to the Class C felony, and the Class D felony was dismissed.

Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 3 of 5 proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial

courts and sentences were scrutinized too severely on appeal, trial judges might

be less inclined to order probation to future defendants.” Id. As a result, we

review a trial court’s sentencing decision from a probation revocation for an

abuse of discretion. Id. (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct.

App. 2005), trans. denied). An abuse of discretion occurs where the decision is

clearly against the logic and effect of the facts and circumstances. Id.

[8] The record reveals that the trial court had ample basis for its decision to order

Diaz to serve part of his previously suspended sentence in the Department of

Correction. Here, Diaz violated his probation, in part, based on the

commission of another habitual traffic violator offense, which is the same type

of offense as the one for which he was placed on probation. Indeed, when

determining what part of Diaz’s suspended sentence to impose, the trial judge

specifically addressed Diaz and discussed this as part of its reasoning for

imposing part of his suspended sentence. The trial judge told Diaz that he had

continued to make bad decisions despite assuring the judge during the January

2013 sentencing hearing that he would not drive again. The trial court

acknowledged Diaz’s choice to admit to the probation violations, but it stated

that Diaz’s actions in committing a new traffic violator offense and not

reporting the offense to the probation department involved a violation of trust.

Furthermore, the presentence investigation report reveals that Diaz, who was

twenty-eight when he committed the original Class D felony driving offense,

Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 4 of 5 has a rather substantial criminal history, including multiple convictions relating

to driving without a license.

[9] Based on the record before us, we conclude that the trial court did not abuse its

discretion by ordering Diaz to serve part of his previously suspended sentence

in the Department of Correction. For the foregoing reasons, we affirm the trial

court’s revocation of Diaz’s probation.

[10] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 5 of 5