MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 09 2016, 9:14 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mario Vidal, December 9, 2016 Appellant-Defendant, Court of Appeals Case No. 40A01-1603-CR-552 v. Appeal from the Jennings Circuit Court State of Indiana, The Honorable Jonathan W. Appellee-Plaintiff. Webster, Judge Trial Court Cause No. 40C01-0802-FC-22
Mathias, Judge.
[1] The Jennings Circuit Court revoked the probation of Mario Vidal (“Vidal”) and
ordered him to serve the entire eighty-nine months of his previously suspended
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 1 of 7 sentence. On appeal, Vidal argues that the trial court abused its discretion in
ordering him to serve the balance of his previously suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On February 7, 2008, Vidal, who had illegally entered this country from his
native Honduras, was charged in Jennings County, Indiana, with Class C
felony forgery. The information alleged that Vidal had made, uttered, or
possessed a fake payroll check that purported to have been made by Lowe’s
Distribution Center. On May 19, 2008, Vidal entered into a plea deal with the
State. Pursuant to the agreement, Vidal pleaded guilty to Class C felony
forgery. The plea agreement clearly informed Vidal that “[i]f you are an illegal
alien, a resident alien, or a ‘green card permanent resident’ of the United States,
or otherwise not a lawful United States citizen, a felony conviction may result
in deportation.” Appellant’s App. p. 40. Vidal was sentenced to eight years,
with all but the 218 days he had already served suspended to probation.
[4] After he was sentenced, Vidal was deported. As a result, he never reported to
his probation officer as required by the terms of his probation. On January 6,
2009, the State filed a petition to revoke or modify Vidal’s probation, alleging
that he had violated the terms of probation by failing to report to his probation
officer. Vidal failed to appear at the scheduled March 30, 2009, probation
hearing, and the trial court issued a bench warrant for his arrest.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 2 of 7 [5] Although he failed to appear at the probation hearing, Vidal had illegally re-
entered the United States shortly after his deportation, as evidenced by the fact
that, in 2009, he was arrested for forgery in Arizona and for theft in Louisiana.
In 2011, he was arrested and convicted in New York for robbery and disorderly
conduct. In 2013, he was arrested and convicted in New Jersey for theft and
forgery. On October 13, 2015, Vidal completed his sentences in New York and
New Jersey. On November 10, 2015, Vidal was transported to Indiana on the
bench warrant that had been issued as a result of his failure to appear for the
probation hearing.
[6] A probation revocation hearing was held on February 9, 2016. The trial court
found that Vidal had violated the terms of his probation by failing to report to
his probation officer as required. After hearing arguments from both parties, the
trial court took the matter under advisement. Later that same day, the trial
court entered an order revoking Vidal’s probation and ordering him to serve the
balance of his previously suspended sentence. In so doing, the trial court noted
that Vidal had not paid any of the monetary restitution required by his
probation, had illegally re-entered the country, and had been convicted of at
least two additional felonies since his return to the country. Vidal now appeals.
Standard of Review
[7] Vidal argues that the trial court abused its discretion when it revoked his
probation and ordered him to serve the remainder of his previously suspended
sentence.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 3 of 7 [8] Our courts have long noted that probation is an alternative to incarceration and
is granted in the sole discretion of the trial court. Davis v. State, 743 N.E.2d 793,
794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a defendant is not entitled
to serve a sentence on probation; instead, probation is a matter of grace and a
conditional liberty that is a favor, not a right. Id.
[9] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination that a
violation of probation has occurred. Id. Where a probationer admits to the
violation, the court can proceed to the second step of the inquiry and determine
whether the violation warrants revocation. Id.
[10] Upon revocation of probation, a trial 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 year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012)
(citing Ind. Code § 35-38-2-3(h)(l)–(3)).
[11] We review a trial court’s sentencing decision following a probation violation for
an abuse of discretion. Alford, 965 N.E.2d at 135 (citing Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007)). 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.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 4 of 7 Discussion and Decision
[12] Although he did not admit to violating probation to the trial court, Vidal
concedes this point on appeal and argues only that the trial court abused its
discretion by ordering him to serve the remainder of his previously suspended
sentence. Vidal claims that he presented evidence that explains and mitigates
his violation. Specifically, Vidal notes that he received the maximum eight-year
sentence even though, he claims, he had no prior criminal history, and that he
and his then-trial attorney knew that he would almost certainly be deported, yet
failed to address how he could comply with probation if he was deported. Thus,
Vidal claims he was “set up” to fail probation.1
[13] To the extent that Vidal claims that his underlying sentence of eight years was
improper, an appeal from the revocation of his probation is not the proper
forum to present this claim. See Schlichter v. State,
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 09 2016, 9:14 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mario Vidal, December 9, 2016 Appellant-Defendant, Court of Appeals Case No. 40A01-1603-CR-552 v. Appeal from the Jennings Circuit Court State of Indiana, The Honorable Jonathan W. Appellee-Plaintiff. Webster, Judge Trial Court Cause No. 40C01-0802-FC-22
Mathias, Judge.
[1] The Jennings Circuit Court revoked the probation of Mario Vidal (“Vidal”) and
ordered him to serve the entire eighty-nine months of his previously suspended
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 1 of 7 sentence. On appeal, Vidal argues that the trial court abused its discretion in
ordering him to serve the balance of his previously suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On February 7, 2008, Vidal, who had illegally entered this country from his
native Honduras, was charged in Jennings County, Indiana, with Class C
felony forgery. The information alleged that Vidal had made, uttered, or
possessed a fake payroll check that purported to have been made by Lowe’s
Distribution Center. On May 19, 2008, Vidal entered into a plea deal with the
State. Pursuant to the agreement, Vidal pleaded guilty to Class C felony
forgery. The plea agreement clearly informed Vidal that “[i]f you are an illegal
alien, a resident alien, or a ‘green card permanent resident’ of the United States,
or otherwise not a lawful United States citizen, a felony conviction may result
in deportation.” Appellant’s App. p. 40. Vidal was sentenced to eight years,
with all but the 218 days he had already served suspended to probation.
[4] After he was sentenced, Vidal was deported. As a result, he never reported to
his probation officer as required by the terms of his probation. On January 6,
2009, the State filed a petition to revoke or modify Vidal’s probation, alleging
that he had violated the terms of probation by failing to report to his probation
officer. Vidal failed to appear at the scheduled March 30, 2009, probation
hearing, and the trial court issued a bench warrant for his arrest.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 2 of 7 [5] Although he failed to appear at the probation hearing, Vidal had illegally re-
entered the United States shortly after his deportation, as evidenced by the fact
that, in 2009, he was arrested for forgery in Arizona and for theft in Louisiana.
In 2011, he was arrested and convicted in New York for robbery and disorderly
conduct. In 2013, he was arrested and convicted in New Jersey for theft and
forgery. On October 13, 2015, Vidal completed his sentences in New York and
New Jersey. On November 10, 2015, Vidal was transported to Indiana on the
bench warrant that had been issued as a result of his failure to appear for the
probation hearing.
[6] A probation revocation hearing was held on February 9, 2016. The trial court
found that Vidal had violated the terms of his probation by failing to report to
his probation officer as required. After hearing arguments from both parties, the
trial court took the matter under advisement. Later that same day, the trial
court entered an order revoking Vidal’s probation and ordering him to serve the
balance of his previously suspended sentence. In so doing, the trial court noted
that Vidal had not paid any of the monetary restitution required by his
probation, had illegally re-entered the country, and had been convicted of at
least two additional felonies since his return to the country. Vidal now appeals.
Standard of Review
[7] Vidal argues that the trial court abused its discretion when it revoked his
probation and ordered him to serve the remainder of his previously suspended
sentence.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 3 of 7 [8] Our courts have long noted that probation is an alternative to incarceration and
is granted in the sole discretion of the trial court. Davis v. State, 743 N.E.2d 793,
794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a defendant is not entitled
to serve a sentence on probation; instead, probation is a matter of grace and a
conditional liberty that is a favor, not a right. Id.
[9] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination that a
violation of probation has occurred. Id. Where a probationer admits to the
violation, the court can proceed to the second step of the inquiry and determine
whether the violation warrants revocation. Id.
[10] Upon revocation of probation, a trial 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 year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012)
(citing Ind. Code § 35-38-2-3(h)(l)–(3)).
[11] We review a trial court’s sentencing decision following a probation violation for
an abuse of discretion. Alford, 965 N.E.2d at 135 (citing Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007)). 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.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 4 of 7 Discussion and Decision
[12] Although he did not admit to violating probation to the trial court, Vidal
concedes this point on appeal and argues only that the trial court abused its
discretion by ordering him to serve the remainder of his previously suspended
sentence. Vidal claims that he presented evidence that explains and mitigates
his violation. Specifically, Vidal notes that he received the maximum eight-year
sentence even though, he claims, he had no prior criminal history, and that he
and his then-trial attorney knew that he would almost certainly be deported, yet
failed to address how he could comply with probation if he was deported. Thus,
Vidal claims he was “set up” to fail probation.1
[13] To the extent that Vidal claims that his underlying sentence of eight years was
improper, an appeal from the revocation of his probation is not the proper
forum to present this claim. See Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind.
2002) (holding that claim of error in underlying sentence could not be addressed
in appeal from trial court’s order revoking probation); Puckett v. State, 956
N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (“A defendant cannot collaterally
attack the propriety of an original sentence in the context of a probation
revocation proceeding.”). As noted by the trial court, if Vidal believes he was
improperly sentenced or received ineffective assistance of trial counsel, these
1 Vidal acknowledges that he was convicted of other crimes, but correctly notes that these additional grounds for revocation were not alleged in the petition to revoke and therefore cannot form the basis for revocation. See Gleason v. State, 634 N.E.2d 67, 69 (Ind. Ct. App. 1994) (holding that the State’s failure to give the probationer written notice of the violation alleged deprived probationer of due process).
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 5 of 7 matters must be presented in a petition for post-conviction relief. See Schlichter,
779 N.E.2d at 1157 (holding that probationer should have presented claim of
sentencing error on direct appeal or in a post-conviction petition). The bulk of
Vidal’s argument, however, is that the trial court abused its discretion in
ordering him to serve the remainder of his previously suspended sentence. We
now address this claim on its merits.
[14] At first blush, Vidal’s claim that he was “set up” to fail appears to have some
validity. He was given a long term of probation, but was most likely going to be
deported. There appears to have been no discussion of how Vidal could
complete his probation if he was sent back to his native Honduras. Perhaps
Vidal or his counsel believed that, if he was deported, his failure to report to
probation would have no consequences, or perhaps Vidal still held out hope
that he would not be deported. If that were the case, then he would have been
able to complete his term of probation.
[15] However, as noted above, Vidal is not challenging the trial court’s finding that
he violated the terms of his probation. He is instead challenging only the trial
court’s decision to revoke his probation and order him to serve the balance of
his previously suspended sentence. In this regard, Vidal’s argument overlooks
his behavior after his deportation. Specifically, Vidal illegally re-entered the
United States at some point not too long after he was deported. This is proven
by his arrests in 2009 in Arizona and Louisiana. Once back in the United
States, he chose to commit further crimes, as evidenced by his arrests and
subsequent incarceration.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 6 of 7 [16] Under these facts and circumstances, we cannot say that the trial court’s
decision ordering Vidal to serve his previously suspended sentence was an
abuse of the trial court’s considerable discretion in such matters.
[17] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016 Page 7 of 7