MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 19 2018, 8:59 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Smith, July 19, 2018
Appellant-Defendant, Court of Appeals Case No.
48A05-1712-CR-2825
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
48C03-1509-FC-1420
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018 Page 1 of 4
[1] Timothy Smith appeals the trial court’s order revoking his probation and
ordering that he serve the balance of his previously-suspended sentence in the
Department of Correction (DOC). Finding no error, we affirm.
[2] On December 14, 2015, Smith pleaded guilty to multiple counts of fraud and
fraud on a financial institution, as well as corrupt business influence and theft.
On December 28, 2015, the trial court sentenced Smith to an aggregate term of
six years, fully suspended to probation.
[3] On September 19, 2016, the probation department filed a notice of probation
violation, alleging that Smith had failed to timely report to probation, pay
probation and administrative fees, and maintain employment. At the hearing
on the notice, Smith admitted to the allegations. The trial court found that
Smith had violated the conditions of his probation but nevertheless permitted
Smith to return to probation, adding probation conditions requiring Smith to
report weekly to probation and to gain employment within thirty days.
[4] On March 28, 2017, the probation department filed a second notice of
probation violation, alleging that Smith had failed to timely report to probation,
pay his probation fees, and gain employment. An amended notice of violation
was filed on October 30, 2017, adding allegations that Smith had failed to keep
probation informed of his address and secure a travel permit for out-of-state
travel, and had committed a new criminal offense.
[5] The trial court held a hearing on the amended notice of violation on November
6, 2017. Smith’s probation officer testified that in addition to failing to pay his
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fees, obtain employment, or keep the probation department apprised of his
address, Smith had traveled to Illinois without permission and was charged
there with a new criminal offense. The probation officer testified that Smith
had called her a couple of times, telling her that he was homeless and having
difficulty finding employment because he did not have a birth certificate and
had recently been shot. She stated that she would have helped him find
housing, but he hung up the telephone and she was unable to help. She also
testified that she had attempted to help him find employment even without a
birth certificate by getting him an interview at a restaurant, but he failed to
show up to the interview. Tr. Vol. II p. 24.
[6] Smith admitted that he traveled to Illinois without permission. He also
admitted that he did not pay his probation fees, report regularly to probation, or
find employment. He testified that his sister was no longer helping him
financially, that he had no means of transportation, and that he could not find
employment because he had no identification and his jaw had been wired shut.
The trial court found that Smith violated the conditions of probation, revoked
probation, and ordered that he serve the balance of the previously-suspended
sentence. Smith now appeals.
[7] Smith’s sole argument is that the trial court should not have ordered him to
serve the entire balance of the previously-suspended sentence. With respect to
the sanction imposed by the trial court, we note that probation is a matter of
grace left to the trial court’s discretion rather than a right to which a defendant
is entitled. E.g., Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial
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court determines the terms and conditions of probation, and the trial court may
revoke probation if the terms and conditions are violated. E.g., Castillo v. State,
67 N.E.3d 661, 663-64 (Ind. Ct. App. 2017), trans. denied. A trial court may
revoke a defendant’s probation for violation of a single condition of his
probation. E.g., Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).
[8] It is undisputed that Smith violated multiple conditions of probation; indeed, he
admitted as much at the violation hearing. Smith insists that his violations
were merely “technical” and, as such, the sanction imposed by the trial court is
unwarranted. Appellant’s Br. p. 8. Caselaw does not distinguish between
“technical” and “substantive” violations of probation, nor would such a
distinction be meaningful. For example, in this case, because Smith so
frequently failed to report to probation, he had not submitted to a drug screen
since July 2016—well over a year—meaning that probation had no way of
knowing whether he was using illegal substances. Moreover, while Smith
claims to have been dealing with challenging circumstances—claims that are
supported by no evidence other than his own self-serving testimony—he gave
his probation officer no opportunity to help him overcome the obstacles he was
facing. Given that Smith admittedly violated multiple conditions of probation,
the trial court did not err by revoking probation and ordering that he serve the
balance of his sentence in the DOC.
[9] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
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