MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 12 2020, 11:03 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David M. Riley, March 12, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2109
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
84D01-1805-F6-1607
84D01-1805-F6-1677
Shepard, Senior Judge.
[1] David M. Riley appeals the sentence the trial court imposed after determining
he violated the terms of his probation. We affirm.
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[2] On May 1, 2018, the State charged Riley with auto theft, a Level 6 Felony. On
May 17, 2018, he was additionally charged with residential entry, a Level 6
Felony, and battery resulting in bodily injury, a Class A misdemeanor. At the
time, Riley also faced an earlier charge of auto theft. As part of his pre-trial
release, Riley was ordered to participate in the Vigo County Sheriff’s GPS
monitoring program and to undergo a mental health evaluation at the Hamilton
Center. He was subsequently admitted into the residential treatment program
at Hamilton Center, also known as Oak Street.
[3] Less than a month later, the State petitioned to revoke Riley’s pre-trial release
placement, claiming he failed to comply with the program’s call-in
requirements, received five reports for failing to obey staff, and continued to use
methamphetamine resulting in multiple positive drug screens.
[4] On July 13, 2018, Riley entered into a plea agreement with the State in the Vigo
Superior Court to plead guilty to two counts of auto theft as Level 6 Felonies in
case numbers 84DOl-1805-F6-1573 and 84D01-1805-F6-1607, and to
1
residential entry as a Level 6 Felony. The State dismissed the battery charge.
At sentencing, Riley received one year for each cause, to be served
consecutively, all of which was suspended to probation with the condition that
he successfully complete the program at Oak Street. He was then released to
Oak Street. About a month and a half after beginning probation, however, the
1
The sentence for the earlier charge of auto-theft, case number 84D01-1805-F6-1573, had been fully served;
therefore, was not an issue for this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020 Page 2 of 6
court received notice from the State that Riley was not compliant with the
program. He failed to abide by the rules and tested positive for
methamphetamine; therefore, he failed to complete the program at Oak Street
per court order. Riley’s Adult Probation Officer filed a notice of probation
violation with the court, recommending that a hearing be held.
[5] On March 15, 2019, the trial court held an evidentiary hearing and revoked
Riley’s probation. Following Riley’s revocation, multiple dispositional hearings
occurred with the last one concluding on June 7, 2019. On the same day, Riley
was subsequently placed back on probation, under the following conditions:
[D]efendant shall report daily to his probation officer; be placed
on the drug screen call-in line; and get into treatment at [Oak
Street]. These additional conditions shall continue until such
time as a bed becomes available at [Oak Street]. At that time,
defendant shall immediately enroll in that program and he is
required to successfully complete the same.
Appellant’s App. Vol. 2, p. 65.
[6] At the time the trial court issued its order, there were no beds available at Oak
Street. Riley contacted Oak Street three times and was told there were no beds
available. Riley’s probation officer also attempted to contact Oak Street but did
not receive any response. During the first four weeks of his new try at
probation, Riley repeatedly tested positive for methamphetamine and THC, in
addition to failing to provide a required drug screen. Appellant’s App. Vol. 2,
pp. 67-68.
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[7] Riley’s Adult Probation Officer filed a second notice of probation violation on
July 15, 2019. On August 29, 2019, Riley admitted to violating his probation,
and the trial court sentenced him to one year and 110 days, after credit time
applied, in the Vigo County Jail, with the possibility of modification after
serving 110 days.
[8] Riley argues that the trial court imposed an inappropriate sentence in response
to his probation violation, citing Indiana Appellate Rule 7(B). Appellate Rule
7(B) “is not the correct standard to apply when reviewing a trial court’s actions
in a post-sentence probation violation proceeding.” Jones v. State, 885 N.E.2d
1286, 1290 (Ind. 2008); see also Prewitt v. State, 878 N.E.2d 184 (Ind. 2007).
Abuse of discretion is the correct standard by which a probation revocation
should be reviewed, as the trial court’s action in sentencing for a probation
violation is not a criminal sentence as contemplated by Ind. App. Rule 7(B).
Jones, 885 N.E.2d at 1290.
[9] Probation, as opposed to incarceration, is a “matter of grace” and a
“conditional liberty that is a favor, not a right.” Cox v. State, 706 N.E.2d 547,
549 (Ind. 1999) (quoting Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App.
1995)). “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. This amount of discretion allows trial
judges to choose an alternative sentence, whereas higher scrutiny would
discourage trial court judges from extending that grace by ordering probation to
future defendants. Id; see also Cox, 706 N.E.2d at 550 (“obstacles to revoking an
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alternative sentence may diminish the likelihood of community corrections
placements being made in the first place”). While Indiana case law promotes
uniformity by creating guidelines and standards for sentencing discretion, it
does not so do “at the expense of individualized consideration of each offender
and their offense.” David J. Bodenhamer & Hon. Randall T. Shepard, The
History of Indiana Law, p. 124 (Ohio Univ. Press 2014).
[10] We exercise responsibility on appeal with restraint, recognizing the expertise of
trial courts in making sentencing decisions, and in this particular case, the trial
judge’s familiarity with the facts of the case and the judge’s repeated in-person
interactions with Riley.
[11] The trial court duly recognized Riley’s struggle with addiction noting “that
pipe’s got [a] hold on you. And [I] recognize that and [I] know it’s hard to
kick[,]” but also recognized that “[we] set you up, we give you treatment, back
in; we set you up, give you treatment, back in, and I don’t know what else to do
with you.” Tr. Vol. 2, pp. 19, 21. “At some point, you have to work harder
than we are to keep yourself out.” Id. at 20. Riley exhibited an unwillingness
or inability to conform his behavior to the law, displayed by the violation of his
pre-trial release and the repeated violations of his probation. In addition, the
trial judge directed that after 110 days of incarceration, Riley might seek a
modification of his sentence if he was able to enroll in a legitimate treatment
facility outside of Vigo County. Id. at 20-21.
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[12] Based on Riley’s repeated violations of court orders and probation, the trial
court did not abuse its discretion in revoking probation and ordering Riley to
serve the remainder of his sentence.
[13] For the foregoing reasons, we affirm the judgment of the trial court.
Crone, J., and Altice, J., concur.
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