Samantha J. Perez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2016
• Docket: 36A01-1507-CR-814
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 17 2016, 8:40 am 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 R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Samantha J. Perez February 17, 2016 Appellant-Defendant, Court of Appeals Case No. 36A01-1507-CR-814 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable William E. Vance, Appellee-Plaintiff Senior Judge Trial Court Cause No. 36C01-1212-FC-81

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016 Page 1 of 5 [1] Samantha Perez (“Perez”) appeals her probation revocation and argues that the

Jackson Circuit Court abused its discretion when it ordered her to serve the

balance of the previously suspended three-year sentence in the Department of

Correction.

[2] We affirm.

Facts and Procedural History

[3] On March 27, 2013, Perez entered into a plea agreement agreeing to plead

guilty to one count of Class C felony forgery. In exchange for her guilty plea,

the State agreed to dismiss eight additional Class C felony forgery counts.

Pursuant to the terms of the plea agreement, on June 2, 2013, Perez was

ordered to serve a four-year sentence, with one year served in home detention

as a direct commitment through community corrections and the remaining

three years suspended to supervised probation. Perez also agreed to pay

restitution to the victims of the nine charged forgeries.

[4] On October 14, 2013, the State filed a petition to revoke Perez’s home detention

after she was charged with possessing methamphetamine, marijuana, and drug

paraphernalia. A second petition was filed shortly thereafter alleging that Perez

left her residence without permission, failed to maintain steady employment,

failed to remain current on her home detention fees, and had an individual in

her home who was wanted on an active arrest warrant.

[5] On January 29, 2014, Perez admitted that she violated the terms of her home

detention and agreed that she would serve the remainder of her home detention

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016 Page 2 of 5 sentence in a correctional facility. In exchange, the State agreed to dismiss its

October 14, 2013, petition to revoke Perez’s probation. After she was released

from incarceration, Perez began serving her three-year term of supervised

probation.

[6] On March 30, 2015, the State filed petition to revoke Perez’s probation alleging

that Perez violated her probation by committing Class A misdemeanor theft.

Specifically, the allegation was that she shoplifted a hairbrush and a flashlight.

Perez admitted that she violated her probation. On June 17, 2015, the trial court

ordered Perez to serve the balance of her previously suspended three-year

sentence in the Department of Correction. Perez now appeals.

Discussion and Decision

[7] Perez argues that the trial court abused its discretion when it revoked her

probation and ordered her to serve the balance of her previously suspended

three-year sentence. “Probation is a matter of grace left to trial court discretion,

not a right to which a criminal defendant is entitled.” Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). Once a court has exercised this grace, the judge

has considerable leeway in deciding how to proceed. Id. It is thus within the

discretion of the court to determine the conditions of the defendant’s placement

and to revoke that placement if those conditions are violated. Heaton v. State,

984 N.E.2d 614, 616 (Ind. 2013). An abuse of discretion occurs where the

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

before the court. Prewitt, 878 N.E.2d at 188.

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016 Page 3 of 5 [8] Once a trial court has determined that probation has been violated, it may

continue the defendant on probation, extend the probationary period for not

more than one year beyond the original period, or order all or part of the

previously suspended sentence to be executed. Ind. Code § 35-38-2-3(h). The

imposition of an entire suspended sentence is within the trial court’s discretion.

See Sanders v. State, 825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005), trans. denied.

[9] Perez claims that ordering her to serve the balance of her previously suspended

three-year sentence, i.e., the most severe sanction allowed under Indiana Code

section 35-38-2-3(h), is not warranted because she has a minimal criminal

history, she admitted to the violation, and she expressed remorse. Perez also

argues that she has attempted to maintain employment but was let go from her

job. She claims that she is willing to make restitution but has not had the ability

to do so. Perez also has four children, and at the revocation hearing, she argued

that her incarceration would be a hardship for them.

[10] The trial court doubted Perez’s claim that she had been employed because no

evidence was presented that would have corroborated her claim. In addition,

Perez’s inability to comply with the conditions of her home detention and

probation is well documented in this case. The trial court noted and the record

establishes that Perez has had numerous chances to prove that she is able to

successfully complete her sentence in home detention and according to the

terms of her probation. Given the facts and circumstances of this case, and

particularly the fact that Perez’s most recent violation of a condition of her

probation was committing theft, we conclude that the trial court acted within its

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016 Page 4 of 5 discretion when it ordered Perez to serve the balance of her previously

suspended three-year sentence.

[11] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-814 | February 17, 2016 Page 5 of 5