MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 26 2020, 8:33 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Wayne Owens, October 26, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-939
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D06-1801-F5-336
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 1 of 4
Case Summary
[1] Kevin Wayne Owens (“Owens”) appeals an order of the trial court that revoked
his probation and ordered him to serve three years of his previously suspended
sentence in the Indiana Department of Correction (“the DOC”). Owens
presents the issue of whether the trial court abused its discretion when it
ordered him to serve three years in the DOC. We affirm.
Facts and Procedural History
[2] On June 17, 2019, Owens pled guilty to Dealing in Methamphetamine, as a
Level 5 felony.1 He was given a suspended six-year sentence, with two years to
be served on formal probation and 936 days to be served on informal probation.
On July 30, 2019, Owens began his formal probation. On September 6, 2019,
he failed to appear for an appointment with his probation officer. He also failed
to notify his probation officer of a change in residence. Specifically, Owens had
left a residential drug treatment program, Club Soda, where he had been placed
as part of criminal proceedings in Vermillion County. On September 25, 2019,
the State filed a Notice of Probation Violation and petitioned to revoke Owens’s
probation.
[3] On March 25, 2020, the trial court conducted a hearing, at which Owens
testified and admitted to the alleged violations. He testified that he suffered
1
Ind. Code § 35-48-4-1.1(a)(2).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 2 of 4
from depression and anxiety, he was embarrassed to face his probation officer
because he had lost a job, and he had walked away from Club Soda because the
availability of drugs threatened his sobriety. The trial court found Owens in
violation of the terms of his probation and revoked his probation. Owens was
ordered to serve three years of his suspended sentence in the DOC. The trial
court recommended to the DOC that Owens be placed in a Purposeful
Incarceration program. Owens now appeals.
Discussion and Decision
[4] Probation may be revoked where: (1) the person violated a condition of the
probation during the probationary period; and (2) the petition to revoke
probation was filed during the probationary period or before the earlier of one
year after termination of probation or forty-five days after the state receives
notification of the violation. See Ind. Code § 35-38-2-3(a). Owens admits that
he violated conditions of his probation. He does not challenge the timing of the
State’s petition to revoke; rather, he contends that the trial court abused its
discretion by ordering that he serve three years of his suspended sentence.
[5] Where the court finds a person has violated a condition of probation, the court
may: (1) continue the person on probation, with or without modifying or
enlarging the conditions; (2) extend the person’s probationary period for not
more than one year beyond the original probationary period; or (3) order the
execution of all or part of the sentence that was suspended at the time of initial
sentencing. See I.C. § 35-38-2-3(h). Trial courts enjoy broad discretion in
Court of Appeals of Indiana | Memorandum Decision 20A-CR-939 | October 26, 2020 Page 3 of 4
adjudicating a probation violation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). We review that decision only for an abuse of discretion, which occurs
when the decision is clearly against the logic and effect of the facts and
circumstances. Id. It is well within the trial court’s discretion to determine the
conditions of probation and revoke it if the conditions are violated. Id. When a
trial court exercises its grace by ordering probation rather than incarceration,
the judge has considerable leeway in deciding how to proceed. Id.
[6] Owens violated conditions of his probation soon after it began by failing to
attend his meeting with his probation officer and failing to report a change of
residence. He has seven prior felony convictions and fifteen misdemeanor
convictions. He has a history of violating the conditions of probation and home
detention. The trial court commented that Owens had been in his court
“almost seven straight years” without successful rehabilitation or compliance
with incarceration alternatives. (Tr. at 24.) Owens has repeatedly
demonstrated his contempt for the grace bestowed upon him by the court. We
are not persuaded that the trial court’s decision was clearly against the logic and
effect of the facts and circumstances.
[7] Affirmed.
Vaidik, J., and Weissmann, J., concur.
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