MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 23 2018, 9:00 am
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
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nakomi Tamasha Neal, February 23, 2018
Appellant-Defendant, Court of Appeals Case No.
71A05-1708-CR-1869
v. Appeal from the
St. Joseph Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jeffrey L. Sanford, Judge
Trial Court Cause No.
71D03-1104-FD-285
Kirsch, Judge.
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[1] Nakomi Tamasha Neal (“Neal”) appeals the revocation of his probation,
contending that the trial court abused its discretion when it imposed his entire
ten-year suspended sentence when it revoked his probation.
[2] We affirm.
Facts and Procedural History
[3] In 2011, pursuant to a negotiated plea agreement, Neal pleaded guilty to
burglary as a Class B felony and criminal recklessness as amended to a Class A
misdemeanor. Sentencing was left to the discretion of the trial court with the
executed portion capped at eight years. On August 18, 2011, the trial court
imposed a ten-year sentence for burglary and a one-year sentence for criminal
recklessness to be served concurrently. The 10-year aggregate sentence was
fully suspended to six years of probation with the first three years of the
probationary term to be served on home detention and the option of early
termination of home detention after eighteen months if Neal successfully
complied with the terms and conditions of home detention and probation.
[4] Neal was charged with a domestic battery that was committed on February 4,
2012. He was discharged from home detention on July 24, 2012, but allowed to
continue on probation. On July 17, 2013, a petition to revoke his probation
was filed, alleging that Neal had committed three new criminal offenses:
resisting law enforcement as a Class A misdemeanor; invasion of privacy as a
Class A misdemeanor; and battery as a Class B misdemeanor. The victim in
this battery case (for which Neal was eventually convicted) was the same victim
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as in the domestic battery case that led to Neal’s removal from home detention
in July 2012. On October 1, 2013, Neal admitted to the probation violation,
and the trial court, at a dispositional hearing held an November 13, 2013,
ordered Neal incarcerated for 244 actual days as a sanction. The trial court also
ordered: “When the Defendant is released from custody, Defendant continued
on probation for five years from today.” Appellant’s App. Vol. II at 77. Neal was
in custody from November 13, 2013 until July 14, 2014.
[5] On August 15, 2016, the State filed a petition to revoke probation, alleging that
Neal failed to complete court-ordered counseling, tested positive for alcohol
and marijuana, and failed to pay his probation fees. The State added a first
addendum to this petition on September 27, 2016, alleging that, on September
22, 2016, Neal committed a Level 5 felony by carrying a handgun without a
license and criminal recklessness as a Level 6 felony. In a second addendum
filed on February 13, 2017, the State alleged that, on July 16, 2016, Neal
committed domestic battery as a Class A misdemeanor.
[6] Neal was convicted at a jury trial of the Level 5 felony carrying a handgun
without a license charge.1 Neal stipulated that his new conviction constituted a
violation of probation. On August 15, 2017, the trial court ordered Neal’s
1
Neal received an aggregate sentence of six years for the case in which he was convicted of this handgun
charge. His appeal challenging the appropriateness of that sentence was recently affirmed by this court. See
Neal v. State, No. 71A03-1708-CR-1814 (Ind. Ct. App. Jan. 31, 2018).
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original ten-year suspended sentence to be executed and served at the
Department of Correction. Neal now appeals.
Discussion and Decision
[7] Neal contends that the trial court abused its discretion when it ordered him to
serve his entire ten-year previously-suspended sentence. “‘Probation is a matter
of grace left to trial court discretion, not a right to which a criminal defendant is
entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014) (quoting
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.; see also Ind. Code § 35-38-2-3(a). “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, 878
N.E.2d at 188. “If this discretion were not afforded to trial courts and sentences
were scrutinized too severely on appeal, trial judges might be less inclined to
order probation to future defendants.” Id. Accordingly, we review a trial
court’s probation violation determination for an abuse of discretion. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion occurs where
the decision is clearly against the logic and effect of the facts and circumstances
or when the trial court misinterprets the law.” Jackson, 6 N.E.3d at 1042.
[8] Probation revocation is a two-step process. Id. “First, the trial court must make
a factual determination that a violation of a condition of probation actually
occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).
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“Second, if a violation is found, then the trial court must determine the
appropriate sanctions for the violation.” Id. If a defendant is found to have
violated his or her probation, a trial court may (1) continue the defendant on
probation; (2) extend the probationary period for not more than one year
beyond the original period; or (3) order all or part of a previously-suspended
sentence to be executed. Ind. Code § 35-38-2-3(g).
[9] Neal repeatedly violated the terms of his probation by committing multiple new
criminal offenses. The trial court had already shown leniency by not imposing
his suspended sentence in his prior revocation proceedings. His home-
detention, served as a condition of probation, was revoked less than a year after
it began because he was convicted of domestic battery. Another petition to
revoke his probation, based on another conviction for battery against the same
victim, was granted. Finally, the revocation at issue was the result of a felony
conviction for carrying a handgun without a license. Neal’s behavior on
probation shows him committing new violent crimes and being feloniously in
possession of a handgun. The trial court’s decision was not clearly against the
logic and effect of the facts and circumstances before it, and the trial court did
not abuse its discretion in revoking Neal’s probation.
[10] As a result of his latest conviction which constituted the probation violation at
issue here, Neal was sentenced to a total of six years executed in the
Department of Correction, a maximum sentence for that conviction. Neal
admitted that the new crime for which he was convicted constituted a violation
of his probation. Without citation to legal precedent, Neal argues that the trial
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court abused its discretion by imposing the entire ten-year suspended sentence
in light of the fact that he received the maximum sentence for the underlying
offense which constituted his probation violation. Committing the present
offense in addition to his other offenses shows Neal’s a lack of reform. The trial
court did not abuse its discretion when it ordered Neal to execute his
previously-suspended sentence in its entirety.
[11] Affirmed.
[12] Bailey, J., and Pyle, J., concur.
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