MEMORANDUM DECISION
Mar 12 2015, 10:15 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James M.A. Howard, March 12, 2015
Appellant-Defendant, Court of Appeals Case No.
84A05-1408-CR-396
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Judge
Appellee-Plaintiff.
Case No. 84D03-1207-FC-2330
Vaidik, Chief Judge.
Case Summary
[1] James M.A. Howard was serving the first year of a three-year probation
sentence when he committed felony burglary. The trial court revoked his
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probation and ordered him to serve two years of his previously suspended three-
year sentence. Howard argues that the trial court abused its discretion in not
returning him to probation. Because the trial court had no reason to believe
that Howard would be deterred from committing more crimes if he remained
on probation, we affirm Howard’s sentence.
Facts and Procedural History
[2] In 2012 Howard pled guilty to Class C felony battery by means of a deadly
weapon. Appellant’s App. p. 19. In January 2013 the trial court sentenced him
to five years, with two years “executed as a direct commitment to the Vigo
County Work Release Program” and three years suspended to probation. Id. at
23-24. Because of credit time that Howard had accrued before sentencing, the
court found that he had already “served the executed portion of [his] sentence
in its entirety” and placed him on probation. Id. at 23.
[3] In October 2013, while Howard was serving the first year of his probation
sentence, he broke into a house and barn and stole guns and tools. State’s Ex.
1. The State charged Howard with Class C felony burglary and Class A
misdemeanor criminal trespass. Howard pled guilty to Class C felony burglary
in June 2014.
[4] Meanwhile, in November 2013 the probation department filed a notice of
probation violation alleging that Howard violated his probation by committing
a criminal offense while he was on probation. Appellant’s App. p. 32. At the
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probation-violation hearing in July 2014, Howard admitted that he violated the
terms of his probation. Tr. p. 5. He asked the trial court to “restore[] him to
probation” and give him a chance to get a job, pay his child support, and visit
his son. Id. at 10-11. Howard testified that he was living with his grandparents
at the time of his arrest, but if he were released, he would “[m]ost likely” live at
his aunt’s house. Id. at 8. Howard said that although he was not working at the
time of his arrest, he was “about to start a job in Avon with [his] uncle” at a
steel factory making $10-15/hour. Id.
[5] In pronouncing sentence, the trial court noted its frustration that Howard, while
on probation, did not “gain[] some tools to help himself stay crime-free.” Id. at
16. Instead, nine months after being placed on probation, Howard “committed
a burglary” involving guns. Id. at 17. Accordingly, the trial court ordered that
two years of Howard’s previously suspended three-year sentence be executed at
the Indiana Department of Correction. Id.
[6] Howard now appeals.
Discussion and Decision
[7] Howard contends that the trial court abused its discretion in not returning him
to probation. Once a trial court has exercised its grace by ordering probation
rather than incarceration, “the judge should have considerable leeway in
deciding how to proceed.” Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If
this discretion were not given to trial courts and sentences were scrutinized too
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severely on appeal, trial judges might be less inclined to order probation. Id.
Accordingly, a trial court’s sentencing decision for a probation violation is
reviewable using the abuse-of-discretion standard. Id. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[8] If a trial court finds that a person has violated his probation before termination
of the period, the court may 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).
Here, Howard argues that he should be returned to probation because “he had
secured full-time employment at a steel factory earning enough money to
support his dependent child,” “he had arranged to live with family members in
a stable environment,” and “he exercised regular parenting time with his son.”
Appellant’s Br. p. 4. This evidence does not show that the trial court abused its
discretion. Howard committed a burglary while serving the first year of a three-
year probation sentence. Moreover, Howard did so while he was already living
with family members (his grandparents) and while he already had parenting
time with his son and was court-ordered to support him. In addition, other
than his own testimony, Howard presented no evidence that he was “about” to
start a job when he was arrested or that the job was still available given his
newest felony conviction. Even if it were true that Howard was taking steps to
improve his life, none of these things stopped him from breaking into a house
and barn to steal guns and tools while he was in the early stage of probation.
Accordingly, the trial court had no reason to believe that Howard would be
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deterred from committing more crimes if he remained on probation. We
therefore affirm Howard’s sentence.
[9] Affirmed.
Baker, J., and Riley, J., concur.
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