MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Aug 17 2016, 5:47 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gary A. Cook Gregory F. Zoeller
Peru, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Raber, August 17, 2016
Appellant-Defendant, Court of Appeals Case No.
34A05-1512-CR-2291
v. Appeal from the
Howard Superior Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-0910-FD-921,
34D01-0912-FB-1097
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016 Page 1 of 5
[1] Brian Raber appeals from the trial court’s order revoking his probation. Raber
argues that the trial court abused its discretion when ordering him to serve the
remainder of his suspended sentences in the Department of Correction (DOC).
[2] We affirm.
Facts & Procedural History
[3] On May 5, 2010, Raber pled guilty to class D felony invasion of privacy under
cause number 34D01-0910-FD-00921 (FD-921) and class B felony dealing in
methamphetamine under cause number 34D01-0912-FB-01097 (FB-1097).
That same day, the trial court sentenced Raber to eighteen months incarcerated
with twelve months suspended to probation for the class D felony invasion of
privacy. For the class B felony dealing in methamphetamine, the trial court
sentenced Raber to fifteen years incarcerated with six years suspended to
probation. The trial court ordered Raber to serve these sentences consecutively.
[4] Soon after being released from the DOC, Raber violated his probation in June
2014 and was ordered to serve 160 days of his suspended sentence in FB-1097
in the DOC. Shortly thereafter, Raber again violated his probation by not
complying with the conditions of the in-home detention agreement. As a result
of this second violation, Raber was ordered to serve 455 days of his suspended
sentence in FB-1097 in the DOC, which essentially amounted to time served
while awaiting his probation violation hearing.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016 Page 2 of 5
[5] On April 22, 2015, Raber reported to the probation department in connection
with FB-1097 and FD-921. While there, he admitted overdosing on heroin.
On May 20, 2015, the probation department conducted a home visit at Raber’s
residence. At that time, he admitted violating his probation by using
methamphetamine and heroin. The next day, Raber was unable to provide a
urine drug screen at the probation department and asked if he could just “sign
an admission statement admitting that [he] would be positive for meth and
heroin.” Transcript at 10. On June 16, 2015, Raber failed to report to his
probation officer. Two weeks later the State filed a petition to revoke Raber’s
probation in both FB-1097 and FD-921.
[6] On October 28, 2015, the trial court held a combined hearing on the revocation
petitions. At the hearing, Raber admitted that he violated probation as alleged.
The trial court reconvened on November 18, 2015, at which time it issued the
following:
I agree that Mr. Raber is an addict and he may want treatment
but he certainly hasn’t proved it so far. He’s done everything he
could to avoid going to treatment . . . . Accordingly, I’m going to
order the balance of his suspended sentence in connection with
Cause Number F[B]-1097, which I find to be 1,575 days
executed. . . . I’m going to order the balance of his suspended
sentence which the court finds to be 365 days in connection with
Cause Number FD-921, be executed. . . . The sentences in this
case are consecutive.
Id. at 16.
[7] Raber now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016 Page 3 of 5
Discussion & Decision
[8] Raber argues that the trial court abused its discretion in ordering him to serve
the remainder of his suspended sentences under FB-1097 and FD-921. Our
Supreme Court has explained that “[p]robation 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 “determines the
conditions of probation and may revoke probation if the conditions are
violated.” Id. Further, when a trial court has exercised its grace by granting
probation in lieu of incarceration, it has “considerable leeway in deciding how
to proceed” when a probation violation occurs. Id.
[9] Additionally, “a trial court’s sentencing decisions for probation violations are
reviewable using the abuse of discretion standard.” Brandenburg v. State, 992
N.E.2d 951, 953 (Ind. Ct. App. 2013). An abuse of discretion occurs where
“the decision is clearly against the logic and effect of the facts and
circumstances.” Id. Although the court has several alternative sanctions it may
impose where it has found that a defendant has violated probation, one of those
sanctions is to order execution of all or part of the sentence that was suspended
at the time of initial sentencing. Id.; see also Ind. Code § 35-38-2-3-(h)(3).
[10] Here, there was overwhelming evidence to support the revocation of Raber’s
suspended sentences. The record establishes that Raber violated his probation
in June 2014, August 2014, and again in April through June 2015. All of these
violations occurred within a year of being released from the DOC. The trial
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016 Page 4 of 5
court afforded leniency to Raber for his previous violations by ordering
executed only a portion of his previous suspended sentence. Raber claims that
his drug addiction and emotional issues are medical issues that should be
considered by the trial court. However, Raber squandered each opportunity he
was given by continuing to use drugs and violating the conditions of his
probation.
[11] The trial court noted that Raber is an addict and that although “he may want
treatment . . . he certainly hasn’t proved it so far.” Transcript at 16. It was
within the trial court’s discretion to revoke the suspended sentences. Raber has
not demonstrated that the trial court abused its discretion in ordering that he
serve his suspended sentences under FB-1097 and FD-921 in the DOC.
[12] Judgement affirmed.
[13] Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2291 | August 17, 2016 Page 5 of 5