Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Mar 20 2012, 9:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JASON A. CHILDERS GREGORY F. ZOELLER
Hulse, Lacey, Hardacre, Austin, Attorney General of Indiana
Sims & Childers, P.C.
Anderson, Indiana ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MITCHELL PRESTON, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-1108-CR-403
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause No. 48C01-0101-CF-008
Cause No. 48C01-0102-CF-040
Cause No. 48C01-0708-FD-394
March 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Upon finding that Mitchell Preston (“Preston”) had violated the terms of his
probation, the trial court ordered Preston to serve seven years of his previously suspended
sentences in the Indiana Department of Correction (“DOC”). Preston now appeals the trial
court’s order, arguing that it was an abuse of discretion. Finding no abuse of discretion, we
affirm.
Facts and Procedural History
On July 9, 2001, Preston pled guilty to one count of Dealing in a Schedule II
Controlled Substance, as a Class B felony,1 and one count of Possession of Marijuana, as a
Class A misdemeanor,2 under cause number 48C01-0101-CF-008 (“CF-008”). That same
day, Preston pled guilty to one count of Dealing in Cocaine, as a Class B felony,3 and one
count of Dealing in Marijuana, as a Class D felony,4 under cause number 48C01-0102-CF-
040 (“CF-040”). On August 15, 2001, the trial court sentenced Preston to twenty years under
each cause number, with fifteen years executed and five suspended.5 The sentences were to
run concurrently with each other.
On December 17, 2004, Preston petitioned for a modification of his sentence. The
trial court granted Preston’s petition on December 20, 2004, by modifying the executed
1
Ind. Code § 35-48-4-2(a).
2
I.C. § 35-48-4-11.
3
I.C. § 35-48-4-1(a).
4
I.C. § 35-48-4-10(a).
5
Specifically, under CF-008, Preston received twenty years for Dealing in a Schedule II Controlled Substance,
with fifteen years executed and five years suspended, and one year for Possession of Marijuana, to run
concurrently. Under CF-040, Preston received twenty years for Dealing in Cocaine, with fifteen years
executed and five years suspended, and one year for Dealing in Marijuana, to run concurrently.
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portion of his sentences in both CF-008 and CF-040 to time already served. Preston was
released from the DOC the same day and was placed on probation.
In early 2006, the State filed a Notice of Probation Violation against Preston for
operating a vehicle while intoxicated. On March 27, 2006, Preston admitted violating the
terms of his probation. On July 5, 2006, the trial court ordered that Preston’s probation be
extended for six months.
On August 15, 2007, the State charged Preston with several offenses under cause
number 48C01-0708-FD-394 (“FD-394”) and on October 3, 2007, Preston pled guilty to
Possession of a Controlled Substance, as a Class D felony;6 Unlawful Possession of a Legend
Drug, as a Class D felony;7 Operating a Vehicle While Intoxicated, as a Class D felony;8 and
Possession of Marijuana, as a Class D felony.9 Preston was sentenced on October 9, 2007,
and, for each offense, he received three years imprisonment, with eighteen months executed
in the DOC and eighteen months in a community corrections work release program. The trial
court ordered that all his sentences be served concurrently, but stayed all sentences pending
Preston’s successful completion of the drug court program.
Having pled guilty to the offenses in FD-394, Preston was also in violation of his
probation in causes CF-008 and CF-040. For these violations, the court ordered that he serve
two years imprisonment for each cause number, both executed in the DOC, with the terms
6
I.C. § 35-48-4-7(a).
7
I.C. § 16-42-19-13.
8
I.C. § 9-30-5-2(a); I.C. § 9-30-5-3.
9
I.C. § 35-48-4-11(1).
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running concurrently with each other but consecutive to his year sentence in FD-39410.
However, the execution of these two-year terms of imprisonment was also stayed pending
successful completion of the drug court program.
Preston was admitted to the drug court program on October 22, 2007, but he opted out
on October 9, 2008, because of a new arrest. This arrest constituted a violation of the terms
of his probation, and, as a sanction in causes CF-008 and CF-040, he was ordered to serve
two years in a community corrections work release program for each cause number. The trial
court ordered that Preston serve these two terms concurrently with each other. Consecutive
to this was an additional two years in work release for the probation violation in cause FD-
394.
On May 6, 2009, Preston petitioned the court for a modification of the terms of his
sentence from work release to probation. The State did not object, and the trial court granted
Preston’s request as to all three cause numbers on May 18, 2009.
On June 6, 2011, the State filed a notice of probation violation in all three cause
numbers against Preston because he tested positive for cocaine metabolite. The trial court
held a contested hearing on July 11, 2011, and after hearing evidence and argument of
counsel, concluded that Preston had violated the terms of his probation. Preston was ordered
to serve four years in the DOC for his probation violation in CF-008 and four years in the
10
The Chronological Case Summary for FD-394 contains what we surmise to be a typographical error. It states
that the three year sentence in FD-394 shall be consecutive to CF-040 but concurrent with CF-008. However,
both the Chronological Case Summary for CF-040 and the one for CF-008 state that the sanctions in these two
offenses shall run concurrently with each other and consecutive to FD-394.
4
DOC for his violation in CF-040, to run concurrently. For violating his probation in cause
FD-394, the trial court ordered that he serve three years in the DOC, to run consecutively to
the sentences in CF-008 and CF-040, for an aggregate term of seven years in the DOC with
adjustments for credit time and time actually served against his previously-suspended
sentences in work release.
Preston now appeals the trial court’s order for his probation violation.
Discussion and Decision
Standard of Review
Probation is a matter of grace left to the trial court’s discretion, not a right to which a
criminal 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 if those conditions
are violated. Id. We review a trial court’s order for probation violations for an abuse of
discretion. Id. An abuse of discretion occurs when the decision is clearly against the logic
and effect of the facts and circumstances. Id.
Analysis
Preston does not dispute that he violated the terms of his probation, but instead argues
that the trial court abused its discretion by ordering that he serve seven years in the DOC
rather than in a work release program, as he requested. He asks that we vacate the trial
court’s order and remand for a new hearing.
Upon finding that Preston violated the terms of his probation, the trial court could
have ordered any of the following:
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(1) Continue Preston on probation, with or without modifying or enlarging the
conditions.
(2) Extend Preston’s probationary period for not more than one year beyond
the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the
time of initial sentencing.
See I.C. § 35-38-2-3(g).
Here, the trial court revoked Preston’s previously suspended sentences and ordered
that he serve them in the DOC. This was after the trial court had already shown considerable
grace and leeway to Preston. His original sentences in CF-008 and CF-040 were modified
such that he was released from the DOC earlier than originally anticipated and placed on
probation. He then violated the terms of that probation in 2006, but he was not sent back to
the DOC; instead, his probationary period was extended. He violated the terms of his
probation yet again in 2007, but the trial court stayed the sentences for those offenses
pending successful completion of a drug court program. Preston did not successfully
complete that drug court program because of another arrest, but instead of returning him to
the DOC, the trial court sent him to a community corrections work release program. While in
work release, Preston successfully petitioned to be transferred back to probation, where he
again violated the terms of his probation.
Given the extraordinary grace that the trial court has already afforded Preston and his
repeated unwillingness to comply with probationary terms, we cannot say that the trial court
abused its discretion by ordering that Preston serve seven years in the DOC. The trial court’s
6
order is affirmed.
Affirmed.
BAKER, J., and DARDEN, J., concur.
7