MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 27 2017, 10:11 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Matthew R. Elliott
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Schuler, February 27, 2017
Appellant-Defendant, Court of Appeals Case No.
15A01-1606-CR-1418
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-0305-FB-13
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1606-CR-1418 | February 27, 2017 Page 1 of 5
Statement of the Case
[1] David Schuler appeals his sentence following the trial court’s revocation of his
probation. Schuler presents two issues for our review:
1. Whether the trial court abused its discretion when it
sentenced him.
2. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
We affirm.
Facts and Procedural History
[2] Following Schuler’s convictions for attempted aggravated battery, as a Class B
felony, and neglect of a dependent, as a Class C felony, on July 22, 2005, the
trial court sentenced him to twenty years, with fourteen years suspended to
probation. Schuler was released from incarceration and began his period of
probation on February 6, 2007. Schuler violated the conditions of his probation
and, on November 12, 2008, the trial court revoked his probation and ordered
him to serve one year of his suspended sentence in the Department of
Correction (“DOC”). After a second probation violation, on June 16, 2009, the
trial court revoked his probation and ordered him to serve three years of his
suspended sentence in the DOC. After a third probation violation, on
November 24, 2010, the trial court revoked his probation and ordered him to
serve five years of his suspended sentence in the DOC.
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[3] On June 17, 2015, the State charged Schuler with operating a vehicle while
intoxicated, as a Class C misdemeanor, and he was found guilty as charged on
October 7. On January 18, 2016, the State charged Schuler with resisting law
enforcement, as a Class A misdemeanor; disorderly conduct, as a Class B
misdemeanor; and criminal mischief, as a Class B misdemeanor. Accordingly,
on January 25, 2016, the State filed an amended petition to revoke Schuler’s
probation. In that petition, the State alleged that, in addition to the charged
offenses in June 2015 and January 2016, Schuler had consumed alcohol in
violation of the terms of his probation. Following a fact-finding hearing, the
trial court found that Schuler had violated the terms of his probation. And,
following a dispositional hearing, the court revoked Schuler’s probation and
ordered him to serve the remainder of his suspended sentence, five years, in the
DOC. This appeal ensued.
Discussion and Decision
Issue One: Abuse of Discretion in Sentencing
[4] Schuler first contends that the trial court abused its discretion when it ordered
him to serve the remainder of his suspended sentence in the DOC. Probation is
a matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled. 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.; Ind. Code § 35-38-2-3 (2016). Indiana Code
Section 35-38-2-3(h) provides as follows:
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If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) or more of the following sanctions:
(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 (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
A trial court’s sentencing decisions for probation violations are reviewable for
an abuse of discretion. See Prewitt, 878 N.E.2d at 188. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[5] In his brief on appeal, Schuler sets out the appropriate standard of review, but
his argument does not directly address any alleged abuse of discretion by the
trial court. Rather, in essence Schuler merely avers that his life-long alcohol
addiction requires treatment that he will be unable to receive while
incarcerated. For instance, Schuler states that the revocation of his “entire
suspended sentence fails to address the underlying issue” of his alcohol
addiction. Appellant’s Br. at 10. But Schuler does not demonstrate how that
bears on the trial court’s discretion to sentence him under Indiana Code Section
35-38-2-3(h). Schuler’s argument reads more like a narrative rather than cogent
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argument. We hold that the trial court did not abuse its discretion when it
ordered Schuler to serve the remainder of his previously suspended sentence.
Issue Two: Appellate Rule 7(B)
[6] Finally, to the extent Schuler contends that his sentence is inappropriate in light
of the nature of the offenses and his character, the State is correct that his
sentence following his probation revocation is not subject to that review. In
Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008), our supreme court observed
that
the appellate evaluation of whether a trial court’s sanctions are
“inappropriate in light of the nature of the offense and the
character of the offender” is not the correct standard to apply
when reviewing a trial court’s actions in a post-sentence
probation violation proceeding. A trial court’s action in a post-
sentence probation violation proceeding is not a criminal
sentence as contemplated by the rule. The review and revise
remedy of App. R. 7(B) is not available.
(Citation omitted). Accordingly, we do not address Schuler’s contention that
his sentence is inappropriate in light of the nature of the offenses and his
character.
[7] Affirmed.
Bailey, J., and May, J., concur.
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Daniel Schuler v. State of Indiana (mem. dec.)
Combined Opinion