MEMORANDUM DECISION FILED
Nov 17 2017, 10:37 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Drew Thomas Majors, November 17, 2017
Appellant-Defendant, Court of Appeals Case No.
48A02-1705-CR-1171
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1602-F5-256
Pyle, Judge.
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Statement of the Case
[1] Drew Thomas Majors (“Majors”) appeals the trial court’s revocation of his
probation and order that he serve his previously suspended one-year sentence.
He argues that: (1) the trial court abused its discretion when it revoked its
probation; and (2) the trial court abused its discretion when it ordered him to
serve his entire suspended sentence. Because we find that the trial court did not
abuse its discretion in either respect, we affirm the trial court.
[2] We Affirm.
Issues
1. Whether the trial court abused its discretion when it revoked
Majors’ probation.
2. Whether the trial court abused its discretion when it ordered
Majors to serve his previously suspended sentence in the
Department of Correction.
Facts
[3] On May 16, 2016, Majors pled guilty to Level 6 felony residential entry and to
Class A misdemeanor theft. The trial court sentenced him to two years, with
one year executed and one year suspended to probation, for his residential entry
conviction and to nine months for his theft conviction. The trial court also
ordered the sentences to run concurrently.
[4] Subsequently, on April 21, 2017, the Probation Department filed a notice of
violation of probation, alleging that Majors had violated the terms of his
probation by: (1) failing to report to the Probation Department; (2) failing to
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obtain a GED; (3) failing to obtain a substance abuse evaluation at a treatment
facility and to comply with treatment recommendations; (4) testing positive for
Cannabinoids on March 3, 2017; and (5) failing to maintain employment. Four
days later, the Probation Department amended its notice to add an allegation
that Majors had violated his probation by committing two new criminal
offenses—Level 3 felony aggravated battery resulting in the loss or impairment
of bodily function and Level 6 felony auto theft.
[5] The trial court held a probation revocation hearing on May 23, 2017. At the
hearing, Majors admitted to the first five alleged violations of his probation.
With respect to his efforts to obtain a GED, he said that he had enrolled at the
Excel Center but admitted that he had never started classes. With respect to his
employment, he said that he had been employed from November 2016, when
he was released from prison, until March 2017, but he acknowledged that he
had not been employed since that time. Also at the hearing, Anderson Police
Department Detective Larry Crenshaw presented evidence that Majors had
committed the aggravated battery and auto theft offenses for which he had
recently been charged.
[6] At the conclusion of the hearing, the trial court noted that Majors had admitted
the first five alleged probation violations listed in the State’s notice of probation
violation. The trial court also found that the State had met its burden of
proving that Majors had committed new criminal acts while on probation,
specifically the aggravated battery and auto theft charges. The trial court
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revoked Majors’ probation and ordered him to serve his previously suspended
one-year sentence in the Department of Correction. Majors now appeals.
Decision
[7] On appeal, Majors argues that the trial court abused its discretion when it: (1)
revoked his probation; and (2) ordered him to serve his previously suspended
one-year sentence. We will address each of these issues in turn.
1. Probation Revocation
[8] Majors challenges the trial court’s revocation of his probation by arguing that
the trial court should not have considered his failure to maintain employment
or his alleged commission of new crimes. With respect to his failure to
maintain employment, he asserts that there was no evidence that his actions
were voluntary. With respect to his alleged commission of new crimes, Majors
asserts that the trial court impermissibly relied on hearsay evidence that should
not have been admitted into evidence at the hearing.
[9] However, we need not address the merits of either of Majors’ arguments
challenging the revocation of his probation, because we have previously held
that violation of a single condition of probation is sufficient to revoke
probation. See Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans.
denied. Majors admitted to four other probation violations that he does not
challenge on appeal. One of his admissions was that he had tested positive for
Cannabinoids, a criminal offense, in March 2017. Based on these additional,
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unchallenged violations, we conclude that the trial court did not abuse its
discretion in revoking Majors’ probation.
2. Order to Serve Suspended Sentence
[10] Majors also argues that the trial court abused its discretion when it ordered him
to serve his previously suspended one-year sentence. Our supreme court has
previously noted that probation is an alternative to commitment in the
Department of Correction and is ordered at the sole discretion of the trial court.
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. A defendant is not
entitled to serve a sentence on probation. Id. Rather, placement on probation is
a “‘matter of grace’” and a “‘conditional liberty that is a favor, not a right.’” Id.
(quoting Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)). Upon determining
that a probationer has violated a condition of probation, the trial court may
“[o]rder execution of all or part of the sentence that was suspended at the time
of initial sentencing.” IND. CODE § 35-38-2-3(h)(3). “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 v. State,
878 N.E.2d 184, 188 (Ind. 2007). “If this discretion were not given to trial
courts and sentences were scrutinized too severely on appeal, trial judges might
be less inclined to order probation to future defendants.” Id. As a result, we
review a trial court’s sentencing decision from a probation revocation for an
abuse of discretion. Id. An abuse of discretion occurs where the decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id.
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[11] Majors’ argument relies on his above contention that the trial court improperly
considered his commission of new crimes. He contends that we should remand
because the trial court would not have ordered him to serve his entire
suspended sentence if it had not improperly considered the allegation that he
had committed new crimes.
[12] Again, we need not address whether the trial court improperly determined that
Majors had committed new crimes, because there was ample evidence to
support the trial court’s sanction requiring Majors to serve his previously
suspended sentence, regardless of the new crimes. Even if we do not consider
the probation violations that Majors challenges on appeal, he still admitted to
four violations. He violated those four conditions of probation within a few
short months of being released from prison. Further, his violations were not, as
he alleges, “no more than technical violations,” as he admitted to substantial
violations such as testing positive for Cannabinoids. (Majors’ Br. 8).
Accordingly, we conclude that the trial court did not abuse its discretion when
it ordered Majors to serve his previously suspended sentence.
[13] Affirmed.
Riley, J., and Robb, J., concur.
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