Mario Vidal v. State of Indiana (mem. dec.)

      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                              FILED
      this Memorandum Decision shall not be                          Dec 09 2016, 9:14 am
      regarded as precedent or cited before any                           CLERK
      court except for the purpose of establishing                    Indiana Supreme Court
                                                                         Court of Appeals
      the defense of res judicata, collateral                              and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jennifer A. Joas                                         Gregory F. Zoeller
      Madison, Indiana                                         Attorney General of Indiana
                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Mario Vidal,                                             December 9, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               40A01-1603-CR-552
              v.                                               Appeal from the Jennings Circuit
                                                               Court
      State of Indiana,                                        The Honorable Jonathan W.
      Appellee-Plaintiff.                                      Webster, Judge
                                                               Trial Court Cause No.
                                                               40C01-0802-FC-22



      Mathias, Judge.


[1]   The Jennings Circuit Court revoked the probation of Mario Vidal (“Vidal”) and

      ordered him to serve the entire eighty-nine months of his previously suspended


      Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016   Page 1 of 7
      sentence. On appeal, Vidal argues that the trial court abused its discretion in

      ordering him to serve the balance of his previously suspended sentence.


[2]   We affirm.


                                    Facts and Procedural History

[3]   On February 7, 2008, Vidal, who had illegally entered this country from his

      native Honduras, was charged in Jennings County, Indiana, with Class C

      felony forgery. The information alleged that Vidal had made, uttered, or

      possessed a fake payroll check that purported to have been made by Lowe’s

      Distribution Center. On May 19, 2008, Vidal entered into a plea deal with the

      State. Pursuant to the agreement, Vidal pleaded guilty to Class C felony

      forgery. The plea agreement clearly informed Vidal that “[i]f you are an illegal

      alien, a resident alien, or a ‘green card permanent resident’ of the United States,

      or otherwise not a lawful United States citizen, a felony conviction may result

      in deportation.” Appellant’s App. p. 40. Vidal was sentenced to eight years,

      with all but the 218 days he had already served suspended to probation.


[4]   After he was sentenced, Vidal was deported. As a result, he never reported to

      his probation officer as required by the terms of his probation. On January 6,

      2009, the State filed a petition to revoke or modify Vidal’s probation, alleging

      that he had violated the terms of probation by failing to report to his probation

      officer. Vidal failed to appear at the scheduled March 30, 2009, probation

      hearing, and the trial court issued a bench warrant for his arrest.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016   Page 2 of 7
[5]   Although he failed to appear at the probation hearing, Vidal had illegally re-

      entered the United States shortly after his deportation, as evidenced by the fact

      that, in 2009, he was arrested for forgery in Arizona and for theft in Louisiana.

      In 2011, he was arrested and convicted in New York for robbery and disorderly

      conduct. In 2013, he was arrested and convicted in New Jersey for theft and

      forgery. On October 13, 2015, Vidal completed his sentences in New York and

      New Jersey. On November 10, 2015, Vidal was transported to Indiana on the

      bench warrant that had been issued as a result of his failure to appear for the

      probation hearing.


[6]   A probation revocation hearing was held on February 9, 2016. The trial court

      found that Vidal had violated the terms of his probation by failing to report to

      his probation officer as required. After hearing arguments from both parties, the

      trial court took the matter under advisement. Later that same day, the trial

      court entered an order revoking Vidal’s probation and ordering him to serve the

      balance of his previously suspended sentence. In so doing, the trial court noted

      that Vidal had not paid any of the monetary restitution required by his

      probation, had illegally re-entered the country, and had been convicted of at

      least two additional felonies since his return to the country. Vidal now appeals.


                                           Standard of Review

[7]   Vidal argues that the trial court abused its discretion when it revoked his

      probation and ordered him to serve the remainder of his previously suspended

      sentence.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016   Page 3 of 7
[8]    Our courts have long noted that probation is an alternative to incarceration and

       is granted in the sole discretion of the trial court. Davis v. State, 743 N.E.2d 793,

       794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a defendant is not entitled

       to serve a sentence on probation; instead, probation is a matter of grace and a

       conditional liberty that is a favor, not a right. Id.


[9]    Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

       (Ind. Ct. App. 2006). First, the court must make a factual determination that a

       violation of probation has occurred. Id. Where a probationer admits to the

       violation, the court can proceed to the second step of the inquiry and determine

       whether the violation warrants revocation. Id.


[10]   Upon revocation of probation, a trial court may impose one or more of the

       following sanctions: (1) continue the person on probation, with or without

       modifying or enlarging the conditions; (2) extend the person’s probationary

       period for not more than one year beyond the original probationary period; or

       (3) order execution of all or part of the sentence that was suspended at the time

       of initial sentencing. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012)

       (citing Ind. Code § 35-38-2-3(h)(l)–(3)).

[11]   We review a trial court’s sentencing decision following a probation violation for

       an abuse of discretion. Alford, 965 N.E.2d at 135 (citing Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007)). An abuse of discretion occurs where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court. Id.


       Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016   Page 4 of 7
                                           Discussion and Decision

[12]   Although he did not admit to violating probation to the trial court, Vidal

       concedes this point on appeal and argues only that the trial court abused its

       discretion by ordering him to serve the remainder of his previously suspended

       sentence. Vidal claims that he presented evidence that explains and mitigates

       his violation. Specifically, Vidal notes that he received the maximum eight-year

       sentence even though, he claims, he had no prior criminal history, and that he

       and his then-trial attorney knew that he would almost certainly be deported, yet

       failed to address how he could comply with probation if he was deported. Thus,

       Vidal claims he was “set up” to fail probation.1


[13]   To the extent that Vidal claims that his underlying sentence of eight years was

       improper, an appeal from the revocation of his probation is not the proper

       forum to present this claim. See Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind.

       2002) (holding that claim of error in underlying sentence could not be addressed

       in appeal from trial court’s order revoking probation); Puckett v. State, 956

       N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (“A defendant cannot collaterally

       attack the propriety of an original sentence in the context of a probation

       revocation proceeding.”). As noted by the trial court, if Vidal believes he was

       improperly sentenced or received ineffective assistance of trial counsel, these




       1
         Vidal acknowledges that he was convicted of other crimes, but correctly notes that these additional grounds
       for revocation were not alleged in the petition to revoke and therefore cannot form the basis for revocation.
       See Gleason v. State, 634 N.E.2d 67, 69 (Ind. Ct. App. 1994) (holding that the State’s failure to give the
       probationer written notice of the violation alleged deprived probationer of due process).

       Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016            Page 5 of 7
       matters must be presented in a petition for post-conviction relief. See Schlichter,

       779 N.E.2d at 1157 (holding that probationer should have presented claim of

       sentencing error on direct appeal or in a post-conviction petition). The bulk of

       Vidal’s argument, however, is that the trial court abused its discretion in

       ordering him to serve the remainder of his previously suspended sentence. We

       now address this claim on its merits.


[14]   At first blush, Vidal’s claim that he was “set up” to fail appears to have some

       validity. He was given a long term of probation, but was most likely going to be

       deported. There appears to have been no discussion of how Vidal could

       complete his probation if he was sent back to his native Honduras. Perhaps

       Vidal or his counsel believed that, if he was deported, his failure to report to

       probation would have no consequences, or perhaps Vidal still held out hope

       that he would not be deported. If that were the case, then he would have been

       able to complete his term of probation.


[15]   However, as noted above, Vidal is not challenging the trial court’s finding that

       he violated the terms of his probation. He is instead challenging only the trial

       court’s decision to revoke his probation and order him to serve the balance of

       his previously suspended sentence. In this regard, Vidal’s argument overlooks

       his behavior after his deportation. Specifically, Vidal illegally re-entered the

       United States at some point not too long after he was deported. This is proven

       by his arrests in 2009 in Arizona and Louisiana. Once back in the United

       States, he chose to commit further crimes, as evidenced by his arrests and

       subsequent incarceration.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1603-CR-552 | December 9, 2016   Page 6 of 7
[16]   Under these facts and circumstances, we cannot say that the trial court’s

       decision ordering Vidal to serve his previously suspended sentence was an

       abuse of the trial court’s considerable discretion in such matters.


[17]   Affirmed.


       Robb, J., and Brown, J., concur.




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