Donald A. Wood v. State of Indiana ( 2014 )


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  •  Pursuant to Ind. Appellate Rule 65(D),
     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.                    Jan 31 2014, 9:16 am
    
    
    
    
    ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
    LEANNA WEISSMANN                                   GREGORY F. ZOELLER
    Lawrenceburg, Indiana                              Attorney General of Indiana
    
                                                       CHANDRA K. HEIN
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana
    
    
    
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    
    DONALD A. WOOD,                                    )
                                                       )
           Appellant-Defendant,                        )
                                                       )
               vs.                                     )       No. 15A01-1306-CR-288
                                                       )
    STATE OF INDIANA,                                  )
                                                       )
           Appellee-Plaintiff.                         )
    
                       APPEAL FROM THE DEARBORN SUPERIOR COURT
                            The Honorable Jonathan N. Cleary, Judge
                                Cause No. 15D01-0912-FD-260
    
    
                                            January 31, 2014
                     MEMORANDUM DECISION – NOT FOR PUBLICATION
    
    MATHIAS, Judge
           Donald A. Wood (“Wood”) appeals the order of the Dearborn Superior Court
    
    revoking his probation and ordering him to serve six years of his previously-suspended
    
    sentence.
    
           We affirm.
    
                                  Facts and Procedural History
    
           On May 2, 2010, Wood pleaded guilty to Class D felony operating a vehicle while
    
    intoxicated (“OWI”) and admitted to being an habitual substance offender. The trial
    
    court then sentenced Wood to an aggregate sentence of eleven years, with ten years
    
    suspended. On September 10, 2012, Wood was put on probation as part of his suspended
    
    sentence. On April 24, 2013, Wood submitted a urine sample that tested positive for
    
    cocaine, methamphetamine, and alcohol. On May 3, 2013, the State filed a notice of
    
    probation violation.
    
           The trial court held a probation revocation hearing on June 6, 2013. The State
    
    presented evidence that Wood’s underlying conviction was his tenth conviction for OWI.
    
    Further, at the time of the revocation hearing, Wood had two warrants for his arrest in
    
    Ohio. Wood admitted the violation and testified that he had been a substance abuser
    
    since the age of twelve. He claimed to have been clean and sober for forty-five months,
    
    until his father died. Wood stated that the stress from his father’s death led to his relapse.
    
    Wood requested lenience, claiming that he helped take care of his elderly mother. The
    
    trial court took into consideration Wood’s admission of the violation, but noted his
    
    extensive criminal history, his history of probation violations, and the fact that the current
    
    
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    violation was for the use of cocaine, methamphetamine, and alcohol. The trial court then
    
    revoked Wood’s probation and ordered him to serve six of the ten years of his
    
    previously-suspended sentence. Wood now appeals.
    
                                     Discussion and Decision
    
           It is well settled that probation is a matter of grace and a conditional liberty that is
    
    a favor, not a right. Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind. 2009). The trial court
    
    determines the conditions of probation and may revoke upon determining that those
    
    conditions were violated. Id. Here, Wood does not claim that the trial court erred in
    
    revoking his probation. Instead, he claims that the trial court should have ordered him to
    
    serve only two years, not six years, of his previously-suspended sentence.
    
           The sentencing of a defendant following a probation violation is governed by
    
    Indiana Code section 35-38-2-3(h), which provides that upon finding a violation of
    
    probation, a trial court may:
    
            (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;
            (3) order execution of the sentence that was suspended at the time of
                initial sentencing.
    
           The fact that the trial court has options under section 35-38-2-3(h) implies it has
    
    discretion in deciding which option is appropriate under the circumstances of each case.
    
    Johnson v. State, 
    692 N.E.2d 485
    , 488 (Ind. Ct. App. 1998). Indeed, our supreme court
    
    has held that “[o]nce a trial court has exercised its grace by ordering probation rather than
    
    incarceration, the judge should have considerable leeway in deciding how to proceed.”
    
    
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    Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). Accordingly, we review a trial court’s
    
    sentencing decision following a probation revocation for an abuse of discretion. Sanders
    
    v. State, 
    825 N.E.2d 952
    , 957 (Ind. Ct. App. 2005). An abuse of discretion will be found
    
    only where the trial court’s decision is clearly against the logic and effect of the facts and
    
    circumstances before the court. Prewitt, 878 N.E.2d at 188.
    
           Wood claims that the trial court abused its discretion in ordering him to serve six
    
    years executed because he admitted his violation and explained how it happened. He also
    
    claims that his sentence would be unduly harsh on his elderly mother and that a sentence
    
    of two years would adequately punish him for his violation. However, under the facts
    
    and circumstances presented here, we cannot say that the trial court’s decision was an
    
    abuse of discretion.
    
           First, although Wood admitted his violation, he had already tested positive for
    
    drug use, and any denial would have been of little avail. And although we sympathize
    
    with Wood for the loss of his father, this does not excuse his decision to again return to
    
    drug use after a period of sobriety. This is especially so when Wood had participated in
    
    substance abuse treatment and knew of the availability of these services. And the only
    
    evidence regarding the impact on Wood’s mother was Wood’s own testimony, which the
    
    trial court was free to discredit. In fact, Wood himself testified that his sister also assists
    
    with the care of their mother. Moreover, Wood fails to explain how a sentence of two
    
    years would impose any less hardship on his family. See Patterson v. State, 
    846 N.E.2d 723
    , 730 (Ind. Ct. App. 2006) (finding no abuse of trial court discretion for failing to
    
    consider undue hardship on defendant’s family as a mitigator when defendant failed to
    
    
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    explain how greater sentence imposed any additional hardship than lesser sentence would
    
    impose).
    
          Wood is a recidivist drunk driver and substance abuser with ten prior convictions
    
    for OWI. Woods also had prior drug related convictions and had violated the terms of his
    
    probation in the past. Nor was Wood’s current violation a minor one; he tested positive
    
    for cocaine, methamphetamine, and alcohol. Under these facts and circumstances, we
    
    cannot say that the trial court abused its discretion in ordering Wood to serve six of the
    
    ten years of his previously-suspended sentence.
    
          Affirmed.
    
    BRADFORD, J., and PYLE, J., concur.
    
    
    
    
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