MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 19 2017, 8:23 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
Amanda O. Blackketter Curtis T. Hill, Jr.
Blackketter Law, LLC Attorney General of Indiana
Shelbyville, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rebecca Michelle Mason, January 19, 2017
Appellant-Defendant, Court of Appeals Case No.
73A01-1606-CR-1370
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable David N. Riggins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
73D02-1408-F6-33
Pyle, Judge.
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Statement of the Case
[1] Rebecca Mason (“Mason”) appeals the trial court’s order revoking her
probation and ordering her to serve her previously suspended sentence
following her admission that she committed a new offense. Mason argues, and
the State concedes, that the trial court’s probation revocation order contains a
scrivener’s error that needs to be corrected on remand. Additionally, Mason
contends that the trial court abused its discretion by ordering her to serve the
remainder of her previously suspended sentence. Concluding that the trial
court did not abuse its discretion by ordering Mason to serve her previously
suspended sentence, we affirm the trial court’s revocation of Mason’s probation
and remand for correction of the scrivener’s error.
[2] We affirm and remand.
Issues
1. Whether the trial court’s order should be remanded to correct
a scrivener’s error.
2. Whether the trial court abused its discretion by ordering
Mason to serve her previously suspended sentence.
Facts
[3] In August 2014, Mason pled guilty to Level 6 felony operating a vehicle while
intoxicated (“OWVI”) with a prior conviction. The trial court imposed a
sentence of 540 days, with thirty (30) days executed and 510 days suspended to
probation. The trial court also suspended Mason’s driver’s license for 365 days.
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[4] In March 2015, the State filed a notice of probation violation, alleging that
Mason had violated her probation by, among other things, consuming alcohol.
In September 2015, Mason admitted to the violation. The trial court ordered
that eighty-eight (88) days of Mason’s previously suspended sentence were to be
executed, with credit for time served, and it continued her on probation.
[5] Thereafter, on May 11, 2016, the State filed a second notice of probation
violation, alleging that Mason had violated her probation by being arrested and
charged, in Johnson County, with Level 6 felony operating a vehicle after being
an habitual traffic violator (“HTV”).1 Approximately one week later, the State
filed an addendum to the revocation petition, alleging that Mason had violated
her probation by consuming alcohol as evidenced by a Breathalyzer test result
of 0.013. Subsequently, on June 1, 2016, the State filed a second addendum to
the revocation petition, alleging that Mason had also violated probation by
committing the offense of dealing a controlled substance.
[6] The trial court held a probation revocation hearing on June 9, 2016. During the
hearing, Mason admitted that she had violated probation as alleged in the
State’s May 11, 2016 petition; specifically, she admitted that she had committed
the offense of Level 6 felony operating a vehicle after being an HTV in Johnson
1
The May 11, 2016 chronological case summary (“CCS”) entry for this probation revocation petition
provides that “State files a 2nd Petition To Revoke Probation alleging therein that Def committed the offense
of OVWI after being habitual traffic violator . . . .” (App. 8) (emphasis added). The State’s probation revocation
petition, however, clearly alleged otherwise. Specifically, the revocation petition alleged that Mason had
committed the offense of “OPERATING A VEHICLE AFTER BEHING (sic) HABITUAL TRAFFIC
VIOLATOR[.]” (App. 46) (capitalization of all letters in original). (App. 46).
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County. The trial court then stated that it was finding that she had violated her
probation based upon her admission that she had committed operating a vehicle
after being an HTV.2
[7] The trial court then proceeded to a consideration of the appropriate sanction
based on that violation. Mason’s counsel questioned her about her first
probation violation and how it was resolved. Her counsel also asked Mason
whether she had “been clean” since she had last been in court for her first
probation violation. (Tr. 21). Mason responded that she “had not drank (sic) a
drop” since that time. (Tr. 21). The trial court then asked Mason about the
addendum that alleged that she had consumed alcohol. Mason responded that,
at the time of the Breathalyzer test, she had been sick for three weeks and had
taken something but had not consumed alcohol.
[8] The trial court ordered Mason to serve the remaining 270 days of her previously
suspended sentence in the Shelby County Jail, applied her applicable credit
time, and terminated her probation. Mason now appeals.
2
The trial court’s June 9, 2016 order and the corresponding CCS entry (dated June 10, 2016), however,
erroneously indicate that Mason had admitted to committing the offense of “OWVI after being HTV in
Johnson County.” (App. 11, 15). Additionally, that CCS entry also erroneously indicates that the trial court
“finds that Defendant violated probation by consuming alcohol while on probation[.]” (App. 11). A review
of the transcript from the probation revocation hearing indicates that the trial court’s revocation of Mason’s
probation was based solely upon her admission that she had committed operating a vehicle after being an
HTV. See Tr. 23 (revealing that trial court stated that it was “not finding she violated probation” by
consuming alcohol).
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Decision
[9] Mason argues that: (1) the trial court’s probation revocation order contains a
scrivener’s error; and (2) the trial court abused its discretion by ordering her to
serve the remainder of her previously suspended sentence. We will address
each argument in turn.
1. Scrivener’s Error
[10] The parties agree that Mason admitted to violating probation based upon her
commission of the new offense of driving a vehicle after being an HTV. Mason
contends, and the State concedes, that the trial court’s probation revocation
order contains a scrivener’s error. Specifically, the trial court’s written
probation revocation order indicates that Mason admitted to violating her
probation based on the commission of the offense of “OVWI after being HTV.”
(App. 15). Because the parties agree, and a review of the record reveals, that
the revocation of Mason’s probation was based upon her commission driving a
vehicle after being an HTV, we remand to the trial court with instructions to
correct this scrivener’s error in its probation revocation order and the
corresponding entry in the CCS. Additionally, the trial court is instructed to
correct that same CCS entry to correctly reflect that basis for its revocation of
Mason’s probation.
2. Suspended Sentence
[11] Mason argues that the trial court abused its discretion by ordering her to serve
her previously suspended sentence.
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[12] Upon determining that a probationer has violated a condition of probation, the
trial court may “[o]rder 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).
“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, 188 (Ind. 2007). “If this discretion
were not given to trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to future
defendants.” Id. As a result, we review a trial court’s sentencing decision from
a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825
N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[13] The record reveals that the trial court had ample basis for its decision to order
Mason to serve her previously suspended 270-day sentence in the county jail.
Here, Mason—who was on probation for her original Level 6 felony OVWI
conviction—was before the trial court on her second probation revocation
petition. Upon her first revocation petition, she admitted that she had violated
probation by consuming alcohol, and the trial court ordered her incarcerated for
eighty-eight days, after which, she was allowed to remain on probation. Then,
upon this second revocation petition, Mason admitted that she had again
violated probation, this time by committing the offense of driving a vehicle after
being an HTV. After ordering Mason to serve the remainder of her previously
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suspended sentence, the trial court attempted to offer Mason some words of
encouragement:
This is a setback for you. It’s not the end though. You can still
do great things, but you’ve got to get your, your life under
control. Do you understand that? . . . It’s very chaotic right now,
and it looks to me like you have several other matters coming up
that you’re gonna have to deal with.
(Tr. 27).
[14] On appeal, Mason contends that the trial court erroneously considered the
allegations contained in the probation violation addendums when determining
the sanction for her probation violation. Specifically, she asserts that the trial
court’s statement that Mason had “several other matters coming up” indicates
that the trial court considered the other probation violation allegations when
sentencing her and possibly when revoking her probation. We disagree.
[15] The trial court specifically stated that it understood that Mason was not
admitting to any of the allegations contained in the probation revocation
addendums, and the trial court indicated that it was not basing the revocation of
her probation on the alcohol consumption allegation. Moreover, a review of
the record indicates that the trial court’s statement about “several other matters
coming up” could very well have been in reference to Mason’s testimony that
she had been “in the middle of court” trying to regain custody of her children
and had filed a protective order against her husband who had gotten out of
prison “for battery on [her] son[.]” (Tr. 20, 21).
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[16] Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Mason to serve her previously suspended sentence. For
the foregoing reasons, we affirm the trial court’s revocation of Mason’s
probation. As noted above, we remand to the trial court with instructions to
correct its probation revocation order and the corresponding entry in the CCS
to accurately indicate that Mason admitted to violating probation based upon
her commission of the new offense of driving a vehicle after being an HTV (not
the offense of OVWI after being an HTV). Additionally, the trial court is
instructed to correct that same CCS entry to correctly reflect that basis for its
revocation of Mason’s probation (i.e., removing the language that indicates that
the trial court found that Mason violated probation by consuming alcohol while
on probation).
[17] Affirmed and remanded.
Baker, J., and Mathias, J., concur.
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