MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:51 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley Dyer, August 12, 2016
Appellant-Defendant, Court of Appeals Case No.
69A05-1604-CR-888
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff Judge
Trial Court Cause No.
69D01-1312-FD-179
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A05-1604-CR-888 | August 12, 2016 Page 1 of 4
Case Summary
[1] Bradley Dyer appeals the trial court’s revocation of his probation. The sole
issue presented for our review is whether the trial court abused its discretion
when it revoked Dyer’s probation and ordered him to serve his entire suspended
sentence. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] In December 2013, Dyer had a fistfight with a police officer who intervened
when he realized that Dyer was about to hit a woman. Dyer was charged with
class D felony battery on a law enforcement officer, class D felony resisting law
enforcement, and class B misdemeanor public intoxication. In November 2014,
Dyer pled guilty to battery on a law enforcement officer pursuant to a plea
agreement under which he would receive a thirty-six-month sentence with
twenty-four months suspended to probation and the State would dismiss the
remaining charges. The trial court sentenced Dyer in accordance with the plea
agreement.
[3] In March 2016, while on probation, Dyer was charged with class A
misdemeanor operating a vehicle while intoxicated endangering a person. The
State filed a petition to revoke his probation. At the revocation hearing, Dyer
admitted that he violated probation by committing a new criminal offense. The
trial court revoked Dyer’s probation and ordered him to serve his twenty-four-
month suspended sentence. This appeal ensued.
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Discussion and Decision
[4] “Probation is a matter of grace left to trial court 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 has discretion to determine the conditions of probation
and may revoke probation if the conditions are violated. Heaton v. State, 984
N.E.2d 614, 616 (Ind. 2013).
[5] Probation revocation involves a two-step process. “First, the court must make a
factual determination that a violation of a condition of probation actually
occurred. If a violation is proven, then the trial court must determine if the
violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d
533, 537 (Ind. Ct. App. 2009) (citation omitted), trans. denied. The probationer
must be given an opportunity to offer evidence that mitigates his violation. Id.
If the court determines that probation has been violated it may continue the
person on probation, extend the probationary period for no more than a year
beyond the original probationary period, or order execution of all or part of the
previously suspended sentence. Ind. Code § 35-38-2-3(h). Where a trial court
has exercised its grace in granting a defendant probation rather than
incarceration, it has considerable leeway in deciding how to proceed when the
defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at
188. We review a trial court’s decisions to revoke probation for an abuse of
discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse
of discretion occurs when the court’s decision is clearly against the logic and
effect of the facts and circumstances. Prewitt, 878 N.E.2d at 188.
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[6] Citing Prewitt, Dyer contends that the execution of his entire suspended
sentence was not the “most effective and appropriate” sanction and asks that
we reduce his sentence to one year in jail, which would allow him “time to
consider the error of his ways but permit him to be released in a reasonable
amount of time so he could begin an addiction treatment program.”
Appellant’s Br. at 8. Neither Prewitt nor Indiana Code Section 35-38-2-3
imposes a “most effective and appropriate” requirement. Dyer directs us to
self-serving testimony during the revocation hearing that he “messed up” and
“was trying to do right and get home and just trying to take care of [his] kids,”
which the trial court considered as a mitigating circumstance. Tr. at 17.
However, Dyer’s behavior belies his claim because he continues to engage in
illegal behavior when he has consumed alcohol. Under the circumstances, we
cannot say that the trial court abused its discretion in revoking Dyer’s probation
and ordering him to serve his entire suspended sentence. Therefore, we affirm.
[7] Affirmed.
Kirsch, J., and May, J., concur.
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