MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2018, 5:58 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Sorge Fattouch Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kraig Matthew Wyatt, August 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-358 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge Trial Court Cause No. 15C01-1504-F5-29
Rucker, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 1 of 7 [1] The trial court revoked Kraig Wyatt’s probation. Wyatt now appeals
contending the trial court abused its discretion in so doing. Finding no abuse
we affirm.
Facts and Procedural History [2] Apparently arising out of a domestic altercation1 the State, on April 17, 2015,
charged Wyatt in a five-count Information with intimidation as a level 5
felony;2 battery by means of a deadly weapon as a level 5 felony;3 battery with
moderate bodily injury as a level 6 felony;4 criminal mischief as a class A
misdemeanor;5 and possession of a controlled substance as a class A
misdemeanor.6 Thereafter Wyatt entered an agreement with the State and
pleaded guilty as charged to battery by means of a deadly weapon and criminal
mischief. The State dismissed the remaining charges. Pursuant to the
agreement the trial court sentenced Wyatt to an aggregate term of six years in
the Indiana Department of Correction with two years executed and four years
suspended to probation. The terms and conditions of probation included: (i)
1 We say “apparently” because the underlying record is not before us. However, the statutory elements of the offenses listed in footnotes 2, 3, and 4 suggest harm to a family member. 2 Ind. Code § 35-45-2-1 (a)(2) (2014). 3 Ind. Code § 35-42-2-1(b)(1)(g)(2) (2014). 4 Ind. Code § 35-42-2-1(b)(1)(e)(1). 5 Ind. Code § 35-43-1-2(a) (2014). 6 Ind. Code § 35-48-4-7(a) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 2 of 7 no use of controlled substances; (ii) payment of court costs and probation fees
within 60 days of release from incarceration; and (iii) compliance with
substance abuse evaluation and treatment recommendations.
[3] Wyatt was released from incarceration October 13, 2016. Because of the non-
payment of fees Wyatt had violated at least one provision of his probation
within the first few weeks. In any case several months later the Dearborn
County Probation Department filed a petition for probation violation. The
petition alleged that Wyatt had violated the terms of his probation by: (i)
testing positive for controlled substances on three separate occasions; (ii) failing
to pay court costs or probation fees; and (iii) missing four scheduled substance
abuse treatment sessions.
[4] At a fact-finding hearing conducted December 12, 2017 Wyatt admitted the
allegations in the petition. Thereafter on January 2, 2018 the trial court
conducted a dispositional hearing “on the issue of a probation violation
request.” Tr. Vol. 1 p. 4. After considering the evidence and entertaining
arguments of counsel, the trial court ordered “three (3) years and one hundred
eighty (180) days of defendant’s four (4) year suspended sentence be revoked
and that probation shall be terminated.” Appellant’s App. Vol. 2 p. 19. As a
consequence, after being awarded credit for time served, Wyatt was sentenced
to the Department of Correction for a period of three and a half years. This
appeal followed. Additional facts are set forth below as necessary.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 3 of 7 Discussion [5] Wyatt complains the trial court abused its discretion by revoking his probation.
He does not appear to contend the trial court abused its discretion in general by
revoking probation. Rather Wyatt seems to take the position the trial court
revoked too much of his probation.7 In any event, “[p]robation is a matter of
grace left to trial court discretion, not a right to which a criminal defendant is
entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007)). Like the decision to grant probation,
the decision to revoke probation also rests with the sole discretion of the trial
court. See Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). And its decision is
reviewed on appeal only for abuse of that discretion. Prewitt, 878 N.E.2d at
188. An abuse of discretion occurs when the decision is clearly against the logic
and effect of the facts and circumstances before the court. Washington v. State,
784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
[6] Acknowledging three failed drug screens and missing four sessions of substance
abuse treatment, Wyatt argues he presented evidence at the hearing that
“explains and mitigates his violation.” Appellant’s Br. p. 9. For example
Wyatt testified that he was not compliant with substance abuse treatments
7 For example throughout his brief Wyatt consistently frames the argument as “[t]he trial court abused its discretion in revoking three (3) years and one hundred eighty (180) days of Wyatt’s four (4) years [sic] suspended sentence.” Appellant’s Br. pp. 5, 6, 7, 10; see also Tr. Vol. 1 p. 15 (conceding “[Wyatt] is going to have to take a consequence” for violating probation; but disagreeing that the “entire revocation, the entire period of time is appropriate.”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 4 of 7 because of “[m]y job. I wasn’t able to make it because I was working most of
the time. . . .” Tr. Vol. 1 p. 8. According to Wyatt his “biggest obstacle was
failing to address his substance abuse issues with outpatient treatment.”
Appellant’s Br. p. 9 (quoting Tr. Vol. 1 p. 19). In his argument before the trial
court counsel conceded that the then thirty-five year old Wyatt has a “bad
record”8 and offered that his client “also appears to have an addiction problem .
. . .” Tr. Vol. 1 p. 14. In pressing for a sanction other than full revocation
counsel argued: “What it boils down to is, he had a relapse. . . .” Tr. Vol. 1 p.
14.
[7] In this appeal Wyatt advances a similar theme contending the revocation as
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2018, 5:58 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Sorge Fattouch Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kraig Matthew Wyatt, August 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-358 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge Trial Court Cause No. 15C01-1504-F5-29
Rucker, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 1 of 7 [1] The trial court revoked Kraig Wyatt’s probation. Wyatt now appeals
contending the trial court abused its discretion in so doing. Finding no abuse
we affirm.
Facts and Procedural History [2] Apparently arising out of a domestic altercation1 the State, on April 17, 2015,
charged Wyatt in a five-count Information with intimidation as a level 5
felony;2 battery by means of a deadly weapon as a level 5 felony;3 battery with
moderate bodily injury as a level 6 felony;4 criminal mischief as a class A
misdemeanor;5 and possession of a controlled substance as a class A
misdemeanor.6 Thereafter Wyatt entered an agreement with the State and
pleaded guilty as charged to battery by means of a deadly weapon and criminal
mischief. The State dismissed the remaining charges. Pursuant to the
agreement the trial court sentenced Wyatt to an aggregate term of six years in
the Indiana Department of Correction with two years executed and four years
suspended to probation. The terms and conditions of probation included: (i)
1 We say “apparently” because the underlying record is not before us. However, the statutory elements of the offenses listed in footnotes 2, 3, and 4 suggest harm to a family member. 2 Ind. Code § 35-45-2-1 (a)(2) (2014). 3 Ind. Code § 35-42-2-1(b)(1)(g)(2) (2014). 4 Ind. Code § 35-42-2-1(b)(1)(e)(1). 5 Ind. Code § 35-43-1-2(a) (2014). 6 Ind. Code § 35-48-4-7(a) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 2 of 7 no use of controlled substances; (ii) payment of court costs and probation fees
within 60 days of release from incarceration; and (iii) compliance with
substance abuse evaluation and treatment recommendations.
[3] Wyatt was released from incarceration October 13, 2016. Because of the non-
payment of fees Wyatt had violated at least one provision of his probation
within the first few weeks. In any case several months later the Dearborn
County Probation Department filed a petition for probation violation. The
petition alleged that Wyatt had violated the terms of his probation by: (i)
testing positive for controlled substances on three separate occasions; (ii) failing
to pay court costs or probation fees; and (iii) missing four scheduled substance
abuse treatment sessions.
[4] At a fact-finding hearing conducted December 12, 2017 Wyatt admitted the
allegations in the petition. Thereafter on January 2, 2018 the trial court
conducted a dispositional hearing “on the issue of a probation violation
request.” Tr. Vol. 1 p. 4. After considering the evidence and entertaining
arguments of counsel, the trial court ordered “three (3) years and one hundred
eighty (180) days of defendant’s four (4) year suspended sentence be revoked
and that probation shall be terminated.” Appellant’s App. Vol. 2 p. 19. As a
consequence, after being awarded credit for time served, Wyatt was sentenced
to the Department of Correction for a period of three and a half years. This
appeal followed. Additional facts are set forth below as necessary.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 3 of 7 Discussion [5] Wyatt complains the trial court abused its discretion by revoking his probation.
He does not appear to contend the trial court abused its discretion in general by
revoking probation. Rather Wyatt seems to take the position the trial court
revoked too much of his probation.7 In any event, “[p]robation is a matter of
grace left to trial court discretion, not a right to which a criminal defendant is
entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007)). Like the decision to grant probation,
the decision to revoke probation also rests with the sole discretion of the trial
court. See Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). And its decision is
reviewed on appeal only for abuse of that discretion. Prewitt, 878 N.E.2d at
188. An abuse of discretion occurs when the decision is clearly against the logic
and effect of the facts and circumstances before the court. Washington v. State,
784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
[6] Acknowledging three failed drug screens and missing four sessions of substance
abuse treatment, Wyatt argues he presented evidence at the hearing that
“explains and mitigates his violation.” Appellant’s Br. p. 9. For example
Wyatt testified that he was not compliant with substance abuse treatments
7 For example throughout his brief Wyatt consistently frames the argument as “[t]he trial court abused its discretion in revoking three (3) years and one hundred eighty (180) days of Wyatt’s four (4) years [sic] suspended sentence.” Appellant’s Br. pp. 5, 6, 7, 10; see also Tr. Vol. 1 p. 15 (conceding “[Wyatt] is going to have to take a consequence” for violating probation; but disagreeing that the “entire revocation, the entire period of time is appropriate.”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 4 of 7 because of “[m]y job. I wasn’t able to make it because I was working most of
the time. . . .” Tr. Vol. 1 p. 8. According to Wyatt his “biggest obstacle was
failing to address his substance abuse issues with outpatient treatment.”
Appellant’s Br. p. 9 (quoting Tr. Vol. 1 p. 19). In his argument before the trial
court counsel conceded that the then thirty-five year old Wyatt has a “bad
record”8 and offered that his client “also appears to have an addiction problem .
. . .” Tr. Vol. 1 p. 14. In pressing for a sanction other than full revocation
counsel argued: “What it boils down to is, he had a relapse. . . .” Tr. Vol. 1 p.
14.
[7] In this appeal Wyatt advances a similar theme contending the revocation as
ordered by the trial court “was not warranted considering the nature and
circumstances surrounding his probation violation.” Appellant’s Br. p. 10.
According to Wyatt, “the trial court bypassed more effective sanctions that
could have provided Wyatt with treatment and assisted in his successful reentry
into society.” Id.
[8] The trial court rejected Wyatt’s claim that drug dependency or employment was
to blame for Wyatt’s probation violation. The trial court explained for
example:
8 The presentence investigation report for the underlying offenses detailing Wyatt’s criminal history is not included in the record before us. However, at the dispositional hearing the probation officer testified in part that Wyatt has “four (4) felony convictions, thirteen (13) misdemeanor convictions, five (5) prior probation violations. This would be the sixth (6th) and he has been to prison five (5) times.” Tr. Vol. 1 p. 12.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 5 of 7 Mr. Wyatt was given the opportunity to help deal with the substance abuse and he chose not to do it. He claims that it was because he didn’t have time because of work. Given his history, this is the number one (1) priority and I am not impressed to [hear him] say that work is the reason why this wasn’t done.
Tr. Vol. 1 p. 17. As this court has recently observed, if the trial court
determines a probationer has violated a term of probation, then the court may
impose one or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Knecht v. State, 85 N.E.3d 829, 839-40 (Ind. Ct. App. 2017) (citing Ind. Code §
35-38-2-3(h) (2015)). Here, the trial court ordered execution of part of Wyatt’s
suspended sentence under subsection (h)(3).
[9] Wyatt’s revocation was not an abuse of discretion. Wyatt does not contest that
he violated probation and it is not at all clear how the trial court may have
abused its discretion by exercising an option clearly provided by statute. In
addition Wyatt repeatedly violated his probation not only in this case but on
prior occasions as well. See n. 8. Given Wyatt’s multiple probation violations,
past criminal history, and unwillingness or inability to address his apparent
substance abuse issues, the trial court’s revocation of all but six months of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 6 of 7 Wyatt’s four-year probationary term was consistent with the logic and effect of
the facts and circumstances before the trial court. In sum the trial court acted
well within its discretion in revoking Wyatt’s probation.
Conclusion [10] We affirm the judgment of the trial court.
[11] Affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-358 | August 31, 2018 Page 7 of 7