Christopher W. Lopilato v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 25 2020, 9:18 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ana M. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher W. Lopilato, June 25, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2747 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1211-FB-16

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020 Page 1 of 5

Statement of the Case [1] Christopher W. Lopilato appeals his sentence following the trial court’s

revocation of his probation. Lopilato presents a single issue for our review,

namely, whether the trial court abused its discretion when it ordered him to

serve the balance of his previously suspended sentence in the Department of

Correction. [2] We affirm.

Facts and Procedural History [3] On August 26, 2013, Lopilato pleaded guilty to dealing in a controlled

substance, as a Class B felony, in Cause Number 18C05-1211-FB-16 (“FB-16”).

In exchange for his plea, the State dismissed five additional charges. The trial

court accepted Lopilato’s guilty plea and sentenced him to ten years, with seven

years executed in the Department of Correction and three years suspended to

probation. [4] In early 2015, Lopilato completed a therapeutic community program, and he

moved the court to modify his sentence. On March 3, the court granted

Lopilato’s motion and modified his sentence to ten years, with five years

executed and five years suspended to probation. The court then found that

Lopilato had completed the executed portion of his sentence and released him

to probation.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020 Page 2 of 5 [5] In early 2017, while he was on probation, the State charged Lopilato with

several drug-related offenses in Cause Number 48C03-1701-F3-99 (“F3-99”).

On June 13, the State filed a petition to revoke Lopilato’s placement on

probation in FB-16, in which the State alleged that Lopilato had violated the

terms of his placement when he committed the offenses in F3-99. Thereafter,

on November 6, Lopilato pleaded guilty in F3-99 to dealing in a controlled

substance, as a Level 3 felony; dealing in a controlled substance, as a Level 5

felony; two counts of possession of a controlled substance, as Class A

misdemeanors; and possession of marijuana, as a Class B misdemeanor. [6] On July 23, 2019, the trial court held a hearing on the State’s petition to revoke

Lopilato’s placement on probation in FB-16. At that hearing, Lopilato

admitted to the alleged violations. Accordingly, the court revoked his

placement on probation and ordered him to serve the balance of his previously

suspended sentence in the Department of Correction. This appeal ensued.

Discussion and Decision [7] Lopilato appeals the trial court’s order that he serve the balance of his

previously suspended sentence. Probation is a matter of grace left to trial court

discretion. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding

that a defendant has violated a condition of his probation, the trial court may

“[o]rder 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) (2019). We review the trial

court’s sentencing decision following the revocation of probation for an abuse

of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020 Page 3 of 5

of discretion occurs “only where the trial court’s decision is clearly against the

logic and effect of the facts and circumstances” before the court. Robinson v.

State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

trial court’s judgment to determine if there was substantial evidence of

probative value to support the court’s ruling. Id. [8] On appeal, Lopilato asserts that the trial court abused its discretion when it

ordered him to serve the balance of his previously suspended sentence because

he “freely admitted” to the allegations contained in the petition for revocation,

he had “substantially complied” with his previous sentence, and he had

completed both a therapeutic community program while incarcerated and “an

additional substance abuse evaluation” while the petition to revoke his

probation was pending. Appellant’s Br. at 10, 11. However, Lopilato’s

contentions on appeal amount to a request that we reweigh the evidence, which

we cannot do. [9] The trial court’s judgment is supported by substantial evidence and was within

the court’s sound discretion. Following Lopilato’s completion of the

therapeutic community program, the trial court reduced the executed portion of

his sentence from seven years to five years and released him to probation.

However, while on probation, Lopilato engaged in additional criminal activity,

which resulted in convictions for several drug-related offenses. Further, while

Lopilato has participated in programs to overcome his substance abuse issues,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020 Page 4 of 5

he continues to deal drugs. Accordingly, the court’s order that he serve the

balance of his previously suspended sentence is supported by the record and is

well within the trial court’s discretion. We therefore affirm the court’s

judgment. [10] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2747 | June 25, 2020 Page 5 of 5