COMSTOCK v. STATE (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Paul Comstock violated his probation by committing drug-related offenses and failing to report to his probation officer, among other things. Consequently, the trial court executed the balance of Comstock's three-year suspended sentence he received due to being convicted of domestic battery. Comstock now appeals and raises one issue for our review: Whether the trial court abused its discretion when it sentenced Comstock on the probation violation without taking into consideration alternative placement.

[2] We affirm.

Facts and Procedural History

[3] On December 20, 2023, Comstock pled guilty to one count of domestic battery as a Level 6 felony in Cause 03D02-2311-F6-005713 and one count of domestic battery as a Class C misdemeanor in Cause 03D02-2310-CM-005471. Combining the two causes together, Comstock's plea agreement provided that he would be sentenced to three years executed at the Bartholomew County Jail, with all three years suspended, except for time-served, to probation. Pursuant to the plea agreement, Comstock's first year of probation was to be served on Community Corrections. The trial court accepted Comstock's guilty plea and sentenced him according to the plea agreement's terms.

[4] Comstock's terms of probation included that he would obey the law; meet with his probation officer; not possess or use alcohol, drugs, or paraphernalia; submit to alcohol and drug tests and not alter or dilute said tests; participate in and pay for appropriate programs and services; and participate in Community Corrections, including electronic monitoring. Less than two months after Comstock began probation, the probation department filed a petition to revoke Comstock's probation, alleging Comstock had violated his probation terms by being at unapproved locations on two occasions; failing to report to his probation officer on two occasions; using CBD once; being arrested for possessing a syringe and for possessing paraphernalia; attempting to tamper with a probation-administered drug screen; and failing to obtain a substance abuse evaluation.

[5] After an evidentiary hearing, the trial court found that Comstock had violated his probation for all the reasons alleged by probation except for the use of CBD. At the dispositional hearing, Comstock presented evidence about his eligibility to attend a substance abuse treatment program and requested that any sanction include being ordered to complete this program. The trial court rejected this request and imposed the balance of Comstock's suspended sentence, with 335 days served at the Bartholomew County Jail and the remaining 642 days served at the Indiana Department of Correction. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion by Executing Comstock's Suspended Sentence in Custody

[6] Comstock argues that the trial court abused its discretion by ordering him to serve, in custody, the balance of his suspended sentence after he violated the terms of his probation. “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). We review a trial court's sentencing decision on a probation violation for an abuse of discretion. Prewitt, 878 N.E.2d at 188 (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App 2005)). “An abuse of discretion occurs ‘where the decision is clearly against the logic and effect of the facts and circumstances.’ ” Smith, 963 N.E.2d at 1112 (quoting Prewitt, 878 N.E.2d at 188). “We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses.” Id. (citing Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)).

[7] Comstock specifically contends the trial court abused its discretion by “not taking into consideration” his testimony about his desire to participate in substance abuse treatment. Appellant's Br. at 9. First, Comstock's argument is merely a request for this court to reweigh the evidence and reassess witness credibility, which we cannot do. See Smith, 963 N.E.2d at 1112 (citing Cox, 706 N.E.2d at 551). Second, the trial court did consider Comstock's request, as evidenced by the following statement: “Sir now I am also looking forward to once you serve [your] sentence[,] completing the [substance abuse program,] but it will be voluntary at that point in time.” Tr. Vol. II at 21. Finally, Comstock's multiple violations of his probation terms—including being at unapproved locations, failing to report to his probation officer, being arrested for possessing a syringe and paraphernalia, attempting to tamper with a drug screen, and failing to obtain a substance abuse evaluation—all occurred within less than two months of being released to probation, which supports the trial court's decision to order him to serve, in custody, the balance of his suspended sentence. See Ind. Code § 35-38-2-3(h)(3). Based on the foregoing, we cannot say the trial court abused its discretion when it executed the balance of Comstock's suspended sentence for his probation violations. We therefore affirm the trial court's decision.

[8] Affirmed.

Felix, Judge.

Kenworthy, J., and Riley, Sr. J., concur.