Shane J. Thomas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 23, 2019
• Docket: 18A-CR-1986
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 23 2019, 10:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John Jacob Warrum Curtis T. Hill, Jr. Mount Vernon, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shane J. Thomas, April 23, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1986 v. Appeal from the Posey Superior Court State of Indiana, The Honorable S. Brent Almon, Appellee-Plaintiff. Judge Trial Court Cause No. 65D01-1712-F6-721

Mathias, Judge.

[1] Shane J. Thomas (“Thomas”) appeals the order of the Posey Superior Court

revoking his probation and ordering him to serve the balance of his previously

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 1 of 6 suspended sentence in the Department of Correction. Thomas argues that the

trial court abused its discretion in imposing the balance of his sentence because,

he claims, he violated the terms of his probation only due to his fear of being

unable to pay his probation fees.

[2] We affirm.

Facts and Procedural History [3] On December 19, 2017, the State charged Thomas with Level 6 felony

operating a vehicle while intoxicated endangering a person; Level 6 felony

operating a vehicle while intoxicated with a prior conviction; Class A

misdemeanor operating a vehicle while intoxicated endangering a person; Class

C misdemeanor operating a vehicle while intoxicated; and driving while

suspended, an infraction.

[4] On January 30, 2018, Thomas entered into an agreement with the State

whereby he pleaded guilty to Level 6 felony driving while intoxicated with a

prior conviction and driving while suspended. In exchange, the State dismissed

the remaining charges. The trial court sentenced Thomas to two years, with six

months executed, and eighteen months suspended to probation.1

1 At the time of sentencing, Thomas had served eighty-eight days in pre-trial detention and earned an additional eighty-eight days of good-time credit. Thus, he had approximately only one week remaining of his executed sentence to serve.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 2 of 6 [5] Less than two months later, on March 9, 2018, the State filed a petition to

revoke Thomas’s probation, alleging that he had violated the terms of his

probation by failing to attend scheduled visits with his probation officer, failing

to return the telephone calls of his probation officer, missing three scheduled

drug screenings, and failing to call the probation department daily as instructed.

At a revocation hearing held on June 5, 2018, Thomas admitted to violating the

terms of his probation as alleged in the petition. Tr. pp. 4–7. The trial court then

held a dispositional hearing on July 16, 2018, at which it ordered Thomas to

serve the balance of his previously suspended eighteen-month sentence.

Thomas now appeals.

Discussion and Decision

[6] To revoke probation, the trial court must make two determinations under

Indiana Code section 35-38-2-3. First, the court must find that a violation has

occurred by a preponderance of the evidence. Ind. Code § 35-38-2-3(f). Here,

Thomas admitted to violating the terms of his probation, and he therefore

makes no argument on appeal that the trial court erred by finding that he

violated the terms of his probation.

[7] Second, if this threshold is met, the trial court has three options: (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. Ind. Code § 35-38-

2-3(h). Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 3 of 6 [8] On appeal, we review a trial court’s sentencing decision in a probation

revocation proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d

1146, 1148 (Ind. Ct. App. 2005). A trial court abuses its discretion only if its

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

before it. Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).

[9] In the present case, Thomas argues that the trial court abused its discretion by

ordering him to serve the balance of his previously suspended sentence. As we

have recognized in our prior cases:

Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this discretion were not given to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation. . . .

Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013) (citing Prewitt v.

State, 878 N.E.2d 184, 187 (Ind. 2007)) (internal quotation marks omitted),

trans. denied.

[10] Thomas admitted that he failed to show up for scheduled appointments, failed

to return calls from his probation officer, and missed three scheduled drug

screens. These are not minor or technical violations, and they all occurred only

a few weeks after Thomas was released on probation. In addition, the pre-

sentence investigation report showed that Thomas had been charged with

possession of marijuana in another county. Furthermore, Thomas had been

placed on probation in the past but had never successfully completed probation.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 4 of 6 Under these facts and circumstances, the trial court was well within its

discretion to order Thomas to serve the balance of his previously suspended

sentence. See Sanders v. State, 825 N.E.2d 952, 958 (Ind. Ct. App. 2005) (holding

that trial court did not abuse its discretion by ordering defendant to serve the

entirety of her previously suspended sentence where she admitted to probation

violations), trans. denied.

[11] Thomas’s main argument on appeal is that the trial court should have shown

him more lenience because he claimed that he failed to show up to his

appointments because he was unable to pay his probation fees. However, the

trial court was under no obligation to credit Thomas’s self-serving testimony in

this regard. Moreover, the trial court directly addressed Thomas’s excuse,

saying:

Mr. Thomas, one of the deals here is instead of, well, I may not be able to pay, I give up, you go in and proactively talk to your probation officer about that and resolve the issue. It’s not an excuse just to wander off and not participate in probation or miss meetings, and nobody gets revoked for inability to pay.

Tr. p. 22. We agree wholeheartedly. If Thomas was truly concerned about his

ability to pay, he should have spoken with his probation officer. Missing

appointments and, more importantly, drug screens, was simply not an option.

[12] For all of these reasons, we are unable to say that the trial court abused its

considerable discretion by ordering Thomas to execute the balance of his

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 5 of 6 previously suspended sentence. Accordingly, we affirm the judgment of the trial

court.

[13] Affirmed.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1986 | April 23, 2019 Page 6 of 6