Mark Allen Smith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 24, 2016
• Docket: 27A02-1510-CR-1842
• Status: Published

Opinion

FILED MEMORANDUM DECISION May 24 2016, 8:59 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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 William T. Myers Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Allen Smith, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1510-CR-1842 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Appellee-Plaintiff. Judge Trial Court Cause No. 27D03-1311-FD-499 and 27D03- 1408-F6-32

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016 Page 1 of 5 [1] While on probation for his fifth and sixth operating while intoxicated (OWI)

convictions, Mark Allen Smith violated the terms of his probation by

consuming alcohol and breaking his curfew. As a result of these violations,

which Smith admitted, the trial court ordered Smith to serve the remainder of

his sentences in the Department of Correction (DOC). On appeal, Smith

argues that the trial court abused its discretion.

[2] We affirm.

Facts & Procedural History

[3] On November 19, 2013, Smith operated a vehicle while intoxicated with his

four-year-old son in the back seat. Blood results showed he was driving with a

combination of prescription drugs, marijuana, and alcohol in his blood stream.

At the time of this offense, Smith was on probation under cause 27D03-1309-

CM-137 (CM-137) for his fourth OWI conviction.

[4] The State charged Smith with Class D felony neglect of a dependent and Class

D felony OWI while endangering a life under cause 27D03-1311-FD-499 (FD-

499). The State also filed a habitual offender allegation. On July 15, 2014,

Smith pled guilty to the two Class D felonies under FD-499 and admitted

violating probation for a second time in CM-137.1 In exchange, the State

dismissed the habitual offender allegation and agreed to recommend a specific

1 On October 18, 2013, Smith admitted his first probation violation in CM-137. As a result, a curfew was imposed on him and he was ordered to attend two AA/NA meetings per week.

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016 Page 2 of 5 sentencing scheme, which the trial court approved. Accordingly, for the

probation violation, Smith was ordered to serve 50 days executed, which was

ordered to be served consecutive to the sentence under FD-499. With respect to

the two Class D felonies, Smith was sentenced to concurrent 3-year terms of

incarceration with 667 days suspended to probation.

[5] Shortly after being placed on probation, Smith committed another OWI

offense, charged under 27D03-1408-F6-32 (F6-32). In FD-499, the State filed a

petition to revoke on August 14, 2014. Smith entered into another plea

agreement on September 30, 2014. In exchange for his admitted probation

violation in FD-499 and his guilty plea to a Level 6 felony OWI in F6-32,

infractions were dismissed and Smith was sentenced as follows: 1) FD-499

probation violation – 78 days executed and the remaining 589 days suspended

to probation and 2) F6-32 – 912 days incarceration with 10 of those days

executed and 902 days suspended to probation.

[6] On February 26, 2015, the State filed petitions for revocation of probation in

FD-499 and F6-32. Smith subsequently admitted that he violated probation on

February 17, 2015, by consuming alcohol and violating curfew.2 At the

conclusion of the dispositional hearing on September 30, 2015, the trial court

2 Smith was required to be in his residence between 10:00 p.m. and 6:00 a.m. each evening. He admitted spending the night at another residence without obtaining approval from his probation officer.

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016 Page 3 of 5 ordered Smith to serve the balance of his remaining sentences under FD-499

and F6-32 in the DOC – 157 days and 902 days, respectively.

Discussion & Decision

[7] On appeal, Smith argues that the trial court abused its discretion when

sanctioning him. He attempts to offer justifications for his most recent

probation violations and describes them as merely “technical violations”.

Appellant’s Brief at 6. Smith asks that we reverse and remand with instructions

for the trial court to return him to probation.

[8] Probation is a matter of grace and a conditional liberty that is a favor, not a

right. State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015). Once a trial court

has exercised its grace in this regard, it has considerable leeway in deciding how

to proceed when the conditions of placement are violated. See Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007). “Accordingly, a trial court’s sentencing

decisions for probation violations are reviewable using the abuse of discretion

standard.” Id. We will find an abuse of discretion only where the decision is

clearly against the logic and effect of the facts and circumstances. See id.

[9] In its lengthy written Judgment Imposing Sanctions, the trial court detailed

Smith’s extensive criminal history and noted that “numerous efforts have been

made to encourage him to behave lawfully, without success”. Appellant’s

Appendix at 29. Indeed, over the years Smith has amassed six OWI convictions,

three additional convictions (two Class D felonies and one Class A

misdemeanor), and several probation violations. He has been granted leniency

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016 Page 4 of 5 time and again but has continued to violate the law and/or the conditions of his

probation. The trial court indicated at the conclusion of its order that

“Defendant is always polite and articulate when in Court. Unfortunately, his

behavior out of Court has been an ongoing problem.” Id. at 30.

[10] The trial court’s decision to deny Smith yet another chance is amply supported

by the record and, thus, not clearly against the logic and effect of the facts and

circumstances. The trial court was well within its discretion when it ordered

the balance of Smith’s sentences executed.

[11] Judgment affirmed.

[12] Bailey, J. and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1842 | May 24, 2016 Page 5 of 5