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
Feb 07 2014, 9:48 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER
Shelby County Public Defender Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN PERCIFIELD, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1307-CR-329
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable David N. Riggins, Judge
Cause No. 73D02-1109-FD-238
February 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Steven Percifield (“Percifield”) was convicted of Operating a Vehicle while
Intoxicated (“OWI”), as a Class D felony,1 and was sentenced to eighteen months
imprisonment, with all but two days suspended to probation. Upon his admission to a
probation violation, the trial court revoked his probation. Percifield now raises one issue for
our review, whether the trial court abused its discretion when it ordered him to serve the
entirety of his suspended sentence in the Department of Correction.
We affirm.
Facts and Procedural History
On May 7, 2012, Percifield pled guilty to OWI, and was sentenced to eighteen months
imprisonment, with all but two days of his sentence suspended to probation. The terms of
Percifield’s probation required that he attend a Mothers Against Drunk Driving (“MADD”)
panel on September 12, 2012, successfully complete the Shelby County Alcohol and Drug
Program, attend all scheduled appointments with the Probation Department, not commit any
other criminal offenses, notify the Probation Department if he was arrested, and not use any
controlled substance or drug unless prescribed by a physician and used in compliance with
the physician’s orders.
Percifield failed to attend the MADD panel in September 2012, instead attending a
MADD panel in October 2012; however, he failed to provide the certificate of attendance to
the Probation Department for nearly six months. Percifield began treatment with the Shelby
1
Ind. Code § 9-30-5-3(a).
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County Drug and Alcohol Program. However, he was required to start the program anew,
eventually failed to complete treatment, and was consequently discharged from the program.
Percifield also failed to attend an appointment with the Probation Department on March 22,
2013. In addition, Percifield tested positive for use of oxycodone and was arrested for a new
criminal offense, but did not inform the Probation Department of this arrest.
On April 2, 2013, the State filed a petition to revoke Percifield’s probation.
On June 13, 2013, a probation revocation hearing was conducted, during which
Percifield admitted to violating his probation by failing to attend the September 2012 MADD
panel, failing to complete the Shelby County Drug and Alcohol Program, and failing to
attend the March 22, 2013 meeting with the Probation Department. Also during the hearing,
the State produced testimony concerning Percifield’s oxycodone use and failure to report his
new arrest. At the conclusion of the hearing, the trial court revoked Percifield’s probation
and ordered him to serve the entirety of his suspended sentence as executed time in the
Department of Correction.
On July 12, 2013, Percifield filed a motion to correct error, which the trial court
denied.
This appeal ensued.
Discussion and Decision
Percifield appeals from the denial of his motion to correct error. We review an appeal
of a trial court’s order on a motion to correct error for an abuse of discretion, which occurs
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when the trial court’s decision is contrary to the facts and circumstances before it. City of
Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010).
Underlying the motion to correct error is the trial court’s order revoking Percifield’s
probation. Probation is a matter of grace left to the discretion of the trial court; it is not a
right to which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The
trial court determines the conditions of probation and may revoke probation when those
conditions are violated. I.C. § 35-38-2-3; Prewitt, 878 N.E.2d at 188.
Probation revocation is a two-step process. Butler v. State, 951 N.E.2d 255, 262 (Ind.
Ct. App. 2011). First, the court must make a factual determination that a probation violation
has occurred; then, the court must determine if the violation warrants revocation of
probation. Id. When a probationer admits violation of the terms of probation, the trial court
may proceed to the second step of the inquiry. Id. A probationer is entitled to an opportunity
to present evidence that explains and mitigates the violation. Id.
If the trial court decides to revoke probation, it may continue the probation without
modification, extend the probationary period for a year, or order execution of all or part of
the suspended sentence. I.C. § 35-38-2-3(g). We review a trial court’s sentencing decisions
in probation revocation proceedings for an abuse of discretion. Id. (citing Prewitt, 878
N.E.2d at 188).
Here, Percifield admitted to violating the terms of his probation. In mitigation, he
presented evidence that he attended a different MADD panel than the one he was originally
ordered to attend, and that he completed a different and purportedly more structured
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treatment program than the Shelby County Drug and Alcohol Program he had been ordered
to complete and from which he had been discharged. However, the State produced evidence
that Percifield had tested positive for use of oxycodone while serving probation for OWI, a
substance abuse-related offense. The State also produced evidence that Percifield had been
arrested during the pendency of his probation and had not reported the arrest to the probation
department.
Based upon these facts, Percifield violated the terms of his probation on numerous
occasions, and the trial court was therefore within its discretion to order him to serve the
entirety of his previously-suspended sentence as executed time in the Department of
Correction.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
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