Derek Mason v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 11 2015, 9:43 am this Memorandum Decision shall not be 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 Benjamin Loheide Gregory F. Zoeller Law Office of Benjamin Loheide Attorney General of Indiana Columbus, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derek Mason, December 11, 2015 Appellant-Defendant, Court of Appeals Case No. 03A01-1503-CR-115 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff Judge Trial Court Cause No. 03D01-1302-FD-951

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-115| December 11, 2015 Page 1 of 5

Case Summary [1] Derek Mason appeals the trial court’s revocation of his probation. The sole

issue presented for our review is whether the trial court abused its discretion in

revoking Mason’s probation and imposing his entire previously suspended

sentence. Finding no abuse of discretion, we affirm.

Facts and Procedural History [2] On March 22, 2010, Mason pled guilty to two counts of class D felony theft and

two counts of class D felony receiving stolen property. The trial court

sentenced Mason to one and one-half years suspended on each count, to be

served consecutively for an aggregate suspended sentence of six years. The

court placed Mason on probation for a period of four years. [3] In August 2010, the State filed a petition to revoke probation. On February 16,

2011, Mason admitted to violating his probation by committing two class A

misdemeanors. The trial court ordered that Mason be returned to probation for

a four-year term but that he serve his probation in community corrections. In

April 2011, the State filed a second petition to revoke probation. On February

22, 2012, Mason admitted to violating his probation by possessing alcohol

during a home visit. The trial court gave Mason credit for time served and

returned him to probation pursuant to the terms of its 2011 order. [4] On July 15, 2014, the State filed a third petition to revoke probation. During

the probation revocation hearing, Mason admitted to violating his probation by

failing to pay fees and costs, failing to report to four probation appointments,

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and using cannabinoids on March 26, 2013. The trial court revoked Mason’s

probation and imposed the balance of his previously suspended six-year

sentence minus credit time. This appeal ensued.

Discussion and Decision [5] “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). It is within the trial court’s discretion to determine the conditions of

probation and to revoke probation if those conditions are violated. Heaton v.

State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial court’s decision to

revoke probation for an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326

(Ind. Ct. App. 2012). An abuse of discretion occurs when the court’s decision is

clearly against the logic and effect of the facts and circumstances before the

court. Id. We neither reweigh evidence nor reassess witness credibility, and we

consider only the evidence favorable to the trial court’s judgment. Id. If there is

substantial evidence to support the trial court’s decision that a probationer has

violated any terms of probation, we will affirm the decision to revoke

probation. Id. [6] Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

(Ind. 2008). First, the trial court must make a factual determination that a

violation of a condition of probation actually occurred. Id. If a violation is

proven, then the trial court must determine if the violation warrants revocation

of the probation. Id. Violation of a single condition of probation is sufficient to

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revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011),

trans. denied. Upon determining that a probationer has violated a condition of

probation, the trial court may either continue him on probation, with or

without enlarging the conditions, extend his probation for not more than one

year beyond the original probationary period, or 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)(3). 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. [7] Mason first asserts that the trial court abused its discretion in considering his

failure to pay fees and costs as a basis for revoking his probation without: (1)

requiring the State to provide a factual basis that he recklessly, knowingly, or

intentionally failed to pay pursuant to Indiana Code Section 35-38-2-3(g); and

(2) inquiring into his ability to pay. See Smith v. State, 963 N.E.2d 1110, 1112

(Ind. 2012) (In probation revocation cases involving payment of a financial

obligation, the State has the burden to prove the fact of the violation, i.e., less

than full payment, and it must also prove the probationer's state of mind.). [8] During the revocation hearing, Mason admitted to violating the terms of his

probation by failing to pay fees and costs, failing to report to four probation

appointments, and using cannabinoids on at least one occasion during the

probationary period. Thus, the alleged lack of factual basis as to Mason’s state

of mind regarding his failure to pay fees and costs or his ability to pay them is

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not dispositive, as he has two additional admitted violations which standing

alone could support the revocation of probation. 1 See Beeler, 959 N.E.2d at 830. [9] Mason maintains that the imposition of his entire suspended sentence was

unwarranted especially if, aside from his failure to pay fees and costs, his

probation was revoked simply for missing some appointments and using

cannabinoids. The record indicates that this was Mason’s third probation

violation in this cause. Thus, the trial court had ample basis for determining

that imposition of the entire suspended sentence was proper since its prior

attempts at lesser sanctions had proven unsuccessful. The object of

probationary terms and conditions is to ensure that probation serves as a period

of genuine rehabilitation. If a probationer repeatedly violates probation terms,

as is the case with Mason, the very purpose of probation is defeated. Under the

circumstances, we cannot say that the trial court abused its discretion in

revoking Mason’s probation and ordering him to serve his entire suspended

sentence. [10] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

1 We note that although it is the State's burden to prove both the violation and the requisite state of mind in order to obtain a probation revocation based upon nonpayment of a financial obligation, with respect to the ability to pay, it is the defendant probationer's burden “to show facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.” Smith, 963 N.E.2d at 1113 (citation omitted).

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