MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 18 2018, 10:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jacob P. Wahl Curtis T. Hill, Jr.
Steven E. Ripstra Attorney General of Indiana
Ripstra Law Office
Caroline G. Templeton
Jasper, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alberto Barrios, June 18, 2018
Appellant-Defendant, Court of Appeals Case No.
17A-CR-3012
v. Appeal from the
Pike Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Jeffrey L. Biesterveld, Judge
Trial Court Cause No.
63C01-1609-F5-625
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 1 of 6
[1] Alberto Barrios (“Barrios”) appeals his probation revocation from community
corrections placement, contending that the trial court abused its discretion when,
after Barrios committed a new offense, it sentenced him to the Indiana Department
of Correction (“DOC”) for the remainder of his previously-suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On September 20, 2016, Barrios poured gasoline on himself and threatened to set
himself on fire if his wife, A.B., left him. Barrios’s three children were in the
residence when he made the threat. Tr. Vol. II at 12; Appellant’s App. Vol. 2 at 15-16.
The State charged Barrios with neglect of a dependent, a Level 6 felony, and
intimidation, a Level 5 felony. Id. at 2.
[4] Barrios entered into a plea agreement which required him to stay away from the
victims until 2021, but permitted him to write to his children once a year.
Appellant’s App. Vol. 2 at 42. Barrios pled guilty to intimidation, and the State
dismissed the neglect charge. Tr. Vol. II at 12. The trial court sentenced Barrios to
six years, all of which was suspended to probation. Tr. Vol. II at 9; Appellant’s App.
Vol. 2 at 41.
[5] On April 9, 2017, Barrios called two of his children. Id. at 63-64. , The State filed
a motion to revoke probation contending that Barrios committed invasion of
privacy. Appellant’s App. Vol. 2 at 58, 62. The State alleged that Barrios waited
outside of the church that A.B. and the children attended and attempted to contact
them. Id. at 63. Barrios admitted to having direct contact with his children in
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 2 of 6
violation of his probation terms and to having been charged with a new offense as
a result of the contact. Tr. Vol. II at 25. The trial court revoked his probation and
ordered that the remainder of his sentence be served on a work release program
through community corrections. Tr. Vol. II at 27-28; Appellant’s App. Vol. 2 at 73-
74.
[6] On September 11, 2017, the State filed invasion of privacy charges against Barrios
alleging that he called A.B. eight times in twenty minutes and that he left two
messages, saying in one that he was going to retaliate against her because of what
had been done to him. Appellant’s App. Vol. 2 at 77. On September 29, 2017, the
State filed a motion to revoke community corrections.. Id. at 82.
[7] Barrios admitted calling A.B and acknowledged that doing so was a violation of
the protective order and the terms of his work release. Tr. Vol. II at 40-41. He also
stated that A.B. knew where he lived, that he walked every Sunday at the same
time and that A.B. brought the children to that area and he saw them. Id. at 45.
Barrios said that he attempted to contact his children because he missed them. Id.
at 46.
[8] The trial court noted that Barrios admitted the allegations, that he had prior felony
convictions and had violated probation, that he was a high risk to reoffend, and
that prior lenient treatment was not successful. Id. at 61. The court concluded
that it had no choice other than revoking his placement in community
corrections and ordering him to serve the remainder of his previously-suspended
sentence at in the DOC. Id. at 62. Barrios now appeals.
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 3 of 6
Discussion and Decision
[9] Barrios argues that the trial court abused its discretion when it ordered him to serve
the remainder of his previously-suspended six-year 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.
[10] 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)). “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 probation, a trial
court may (1) continue the defendant on probation; (2) extend the probationary
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 4 of 6
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).
[11] Barrios repeatedly violated the terms of his probation by contacting his children.
On December 7, 2016, Barrios entered into a plea agreement with the State. Under
the agreement, Barrios was prohibited from going to A.B.’s residence, his
children’s school, and places where they frequented. Barrios was permitted to
correspond with his children once a year. In return, the State agreed to a
suspended sentence of six years on probation with credit for time served and GPS
monitoring.
[12] On August 28, 2017, a probation violation hearing was held in which Barrios
admitted to contacting his wife and children in April 2017. The trial court
imposed a sentence of five years and seventy-two days to be served at Wabash
Valley Regional Community Corrections in the work release program.
[13] Three weeks later, on September 11, 2017, Barrios contacted his family again,
calling them eight times and leaving two messages, one of which threatened
retaliation. The trial court ordered Barrios to serve his previously-suspended
sentence in its entirety. Barrios had (1) an extensive criminal history with felony
violations, (2) recently violated his probation, (2) failed to respond to more-lenient
treatment, and (4) a high risk of re-offending. The trial court’s decision ordering
Barrios to serve the remainder of his six-year sentence was not clearly against the
logic and effect of the facts and circumstance before it, and the court did not abuse
its discretion in revoking Barrios’ probation.
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 5 of 6
[14] Barrios also contends that his sentence should have been modified, allowing him to
remain on community corrections and providing an avenue to rehabilitate his
relationship with his children. Barrios raises this argument for the first time on
appeal, and it is, therefore, waived. See, e.g., Sisson v. State, 985 N.E.2d 1, 12 (Ind.
Ct. App. 2012) (arguments raised for the first time on appeal are waived and will
not be considered on appeal); Jackson v. State, 712 N.E.2d 986, 988 (Ind. 1999)
(finding that the defendant cannot make a new argument for the first time on
appeal); Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998) (stating that a defendant
may not raise one ground for objection at trial and argue a different ground on
appeal).
[15] Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 17A-CR-3012 |June 18, 2018 Page 6 of 6