NAPPER v. STATE (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Mark A. Napper appeals from the sanction imposed by the trial court after the court determined Napper had violated the conditions of his probation. Concluding the trial court did not err in ordering Napper to serve fifteen months of his previously-suspended sentence, we affirm.

Facts and Procedural History

[2] In July 2023, after a traffic stop, the State charged Napper with Level 5 felony operating a motor vehicle while his license was suspended for life, Class A misdemeanor operating a motor vehicle while intoxicated in a manner endangering a person, and Class C misdemeanor reckless driving.

[3] The parties negotiated a plea agreement. Napper agreed to plead guilty to the Level 5 felony, and the State agreed to dismiss the remaining charges. The State further agreed to recommend to the trial court that Napper receive a sentence of six years, all suspended to probation, with credit for time served.

[4] The trial court heard Napper's guilty plea and took the agreement under advisement. At the December 8, 2023, sentencing hearing, the trial court accepted the parties’ agreement, entered a judgment of conviction on the Level 5 felony, and sentenced Napper to six years, all suspended to probation.

[5] Napper reviewed and signed an order of probation. Among other conditions, he agreed to refrain from committing a new criminal offense or consuming controlled substances. And he agreed to submit to drug and alcohol testing.

[6] On January 22, 2024, the State filed a request for a probation violation hearing. The State alleged Napper had submitted to a urine screen and tested positive for: methamphetamine; a metabolite of cocaine; and THC, a component of marijuana. The State later amended its request to allege that Napper had committed a second violation: failing to report for a scheduled appointment with a probation officer.

[7] The trial court held an evidentiary hearing and concluded that Napper had violated the conditions of his probation by failing a drug test. The court declined to find that he had failed to appear for a scheduled probation appointment. At a subsequent hearing, the court ordered Napper to serve fifteen months of his previously-suspended sentence in the Indiana Department of Correction (“DOC”). This appeal followed.

Discussion and Decision

[8] Napper claims that the trial court's sanction for his probation violation is too severe. He asks the Court to order the trial court to return him to probation.

[9] “ ‘Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.’ ” Slater v. State, 223 N.E.3d 298, 306 (Ind. Ct. App. 2023) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans. denied. If a court determines a person has violated a condition of probation, the court may: (1) continue the term of probation, with or without modifying the conditions; (2) extend the period of probation; or (3) order execution of all or part of the suspended sentence. Ind. Code § 35-38-2-3(h) (2015). We review the trial court's choice of sanction for an abuse of discretion. Overstreet v. State, 136 N.E.3d 260, 263 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances.” Id.

[10] At the probation sanction hearing, Napper did not deny that he has an extensive criminal record, including eight prior felony convictions and fifteen misdemeanors. He also has prior probation violations.

[11] Napper has a lengthy history of abusing controlled substances. Here, he failed a drug screen by testing positive for three controlled substances, a severe violation. Napper argues he did not commit a new criminal offense, but we disagree. When he consumed methamphetamine, cocaine, and marijuana, he necessarily possessed those substances.

[12] Napper further claims he “had little opportunity for treatment” after he was sentenced. Appellant's Br. p. 10. But during the probation evidentiary hearing and the sanctions hearing, Napper did not mention even an intent to seek treatment for his obvious substance addiction issues, much less describe any steps he took to obtain help.

[13] Under these circumstances, the court's choice of fifteen months in the DOC as a sanction, which is less than half of his six-year suspended sentence, is not against the logic and effect of the facts and circumstances. See id. at 264 (no abuse of discretion in ordering defendant to serve balance of suspended sentence at DOC; defendant argued for admission to program, but he had lengthy criminal history and had violated conditions of probation).

Conclusion

[14] For the reasons stated above, we affirm the judgment of the trial court.

[15] Affirmed.

Robb, Senior Judge.

Mathias, J., and Brown, J., concur.