Leslie J. Vickers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 26, 2018
• Docket: 18A-CR-932
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 26 2018, 6:54 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Leslie J. Vickers, November 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-932 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1210-FC-226

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018 Page 1 of 5 [1] Leslie J. Vickers (“Vickers”) appeals the Dearborn Superior Court’s revocation

of his probation, arguing the trial court abused its discretion when it ordered

him to serve six years of his previously suspended sentence.

[2] We affirm.

Facts and Procedural History

[3] In May of 2013, Vickers pleaded guilty to Class C felony forgery. He had made

approximately $650 of unauthorized purchases using another individual’s debit

card. At the time of his forgery conviction, Vickers’s criminal history included a

2013 active warrant for dealing less than two grams of heroin, a 2012 active

warrant for fraudulent use of a credit card, a 2012 conviction for operating on a

suspended driver’s license, an operating while intoxicated conviction, two

possession of marijuana convictions, and a 2007 dealing in marijuana

conviction.

[4] The trial court accepted the plea and on June 4, 2013, imposed a sentence of

eight years imprisonment with seven years suspended to probation. In April of

2014, his probation was transferred to Kentucky.

[5] In August of 2015, the State of Indiana requested revocation of Vickers’s

probation in this matter due to several alleged violations. Specifically, the State

alleged that Vickers was indicted in Hamilton County, Ohio for committing a

level four felony vehicular assault and a level three felony aggravated vehicular

assault. He had overdosed on heroin and struck another vehicle, causing injury

to another driver. Vickers pleaded guilty to a level three felony aggravated Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018 Page 2 of 5 vehicular assault and was sentenced to two years imprisonment in the Ohio

Department of Correction. In its petition for revocation, the State also alleged

that Vickers had left Kentucky without permission and that he had not resided

at the location approved by probation for approximately six weeks prior to his

arrest.

[6] After Vickers completed his Ohio sentence, the trial court held a hearing in this

matter, and Vickers admitted he had violated his probation as alleged. The trial

court revoked Vickers’s probation and ordered him to serve six years of his

previously suspended sentence, with the seventh year to be served on release.

Vickers appeals, arguing that the trial court abused its discretion.

Discussion and Decision

[7] Probation is a matter of grace left to the trial court’s 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 conditions are violated. Id. On appeal, “a trial court’s

sentencing decisions for probation violations are reviewable using the abuse of

discretion standard.” Id. An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before the court. Id. Further, on appeal, we consider only the evidence most

favorable to the judgment without reweighing that evidence or judging the

credibility of the witnesses. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). If

there is substantial evidence of probative value to support the trial court’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018 Page 3 of 5 decision that a defendant has violated any terms of probation, the reviewing

court will affirm its decision to revoke probation. Id.

[8] Vickers primarily argues that Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App.

2016), and the line of cases upon which it relies are persuasive. We disagree. In

Johnson, our court determined that a trial court abused its discretion by ordering

a defendant to serve the entirety of the remaining portion of his executed

sentence in the Department of Correction (“DOC”) for being “out of place” for

short times and moving GPS equipment while on electronic monitoring

because those violations were minor in relation to the severity of the revocation

of probation. Id. at 1231. In Sullivan v. State, 56 N.E.3d 1157 (Ind. Ct. App.

2016), our court found the trial court abused its discretion by ordering an

offender to serve the remainder of his sentence executed in the DOC for the

failure to report to his community corrections placement because he was

hospitalized at a mental health facility. Id. at 1162. In Ripps v. State, the

violation was technical in nature, and it was unclear if he had violated the terms

of his sex offender probation by committing a new offense by living near a

public park and youth center because he was residing in an assisted care facility

due to a medical condition. 968 N.E.2d 323, 328 (Ind. Ct. App. 2012). In

Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), we reversed the trial

court’s probation revocation due to its reliance on factors outside of the

probation revocation allegations. Id. at 1187–88.

[9] Here, Vickers not only left Kentucky without permission and failed to reside at

his approved residence for six weeks, he committed Level 3 felony aggravated

Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018 Page 4 of 5 assault for injuring someone while he was driving during an overdose. We

cannot agree with Vickers that he committed only a minor or technical

violation. Nor does the record show that the trial court relied on evidence or

allegations outside of the revocation proceedings. Accordingly, we find no

abuse of discretion by the trial court.

[10] Vickers also alleges that several factors are mitigating to his probation

violations. Specifically, Vickers points to his acceptance of responsibility for the

violations, the substance abuse programming he completed as well as the

employment he held while incarcerated in the Ohio Department of Corrections.

Vickers also testified that he intended to work on a road project in Kentucky

upon release. Any argument that these factors should outweigh the severity of

his probation violations amount to a request to reweigh the evidence, which is

not our role on appellate review.

Conclusion

[11] Because the trial court relied on sufficient evidence that Vickers’s violations

were severe, and because we will not reweigh the evidence, we affirm the trial

court’s revocation of Vickers’s probation.

[12] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-932 | November 26, 2018 Page 5 of 5