BYERS v. STATE (2024)

MEMORANDUM DECISION

[1] Timothy J. Byers appeals the sanction imposed by the trial court following its revocation of his probation. He argues the trial court abused its discretion when it ordered him to serve the remainder of his suspended sentence incarcerated. We affirm.

Facts and Procedural History

[2] On August 2, 2021, the State charged Byers with Level 6 felony operating a vehicle while intoxicated with a prior conviction and endangering a person,¹ Class A misdemeanor resisting law enforcement,² and Class A misdemeanor driving while suspended ³ in cause number 86C01-2108-F6-70 (“F6-70”). On February 1, 2022, Byers pled guilty as charged. The trial court sentenced Byers to 365 days for each of the misdemeanor convictions and suspended those sentences to probation. The trial court sentenced Byers to 730 days for Level 6 felony operating a vehicle while intoxicated and suspended that sentence to probation. The sentences were to be served concurrent to one another, but consecutive to his sentence from a prior case.⁴ The terms of Byers's probation required him to, in relevant part,

behave lawfully, abstain from the use or possession of any controlled substances unless prescribed by a doctor, perform one hundred (100) hours of community service, complete a sober living program and mental health assessment and pay all fine[s,] costs and fees.

(App. Vol. II at 20.)

[3] On June 23, 2023, the State charged Byers with Class A misdemeanor driving while suspended and Class C infraction driving with an improper or no tail or plate light ⁵ in cause number 02D04-2306-CM-2509 (“CM-2509”). On August 2, 2023, Byers pled guilty to Class A misdemeanor driving while suspended and the trial court sentenced him to 365 days suspended. On October 30, 2023, Byers provided a drug screen that tested positive for Buprenorphine, alcohol, and methamphetamine.

[4] On November 14, 2023, the probation department filed a petition to revoke Byers's probation in cause number F6-70 alleging he committed a new crime under cause number CM-2509; tested positive for Buprenorphine, alcohol, and methamphetamine; had not performed any of the required 100 hours of community service; failed to pay $10.50 in fines; and had not provided proof of completion of a sober living program or mental health assessment. On April 11, 2024, the trial court held a hearing on the petition to revoke Byers's probation. Byers admitted violating his probation by committing Class A misdemeanor driving while suspended and testing positive for Buprenorphine, alcohol, and methamphetamine. Byers also admitted he committed “assisting a criminal” in 2019 and “an operating while intoxicated offense” in 2021. (Tr. Vol. II at 32.) He admitted he was on probation for the 2021 crime when he committed the crimes underlying his conviction and probation in cause number F6-70. He also claimed he completed a sober living program, had paid all but a small portion of the ordered fines, and had completed “around 50 hours or 45 hours” at “a soup kitchen in Dekalb County[.]” (Id. at 30.)

[5] The trial court revoked Byers's probation because he committed another crime, tested positive for illegal substances, failed to provide proof of completion of a sober living program and mental health assessment, had not completed 100 hours of community service, and did not pay all of his fines. As a sanction for that revocation, the trial court ordered Byers to execute the remaining balance of his suspended sentence, 487 days, incarcerated. The trial court applied 117 days of good time credit to Byers's incarceration.

Discussion and Decision

[6] Byers argues the trial court abused its discretion when it ordered him to serve the remainder of his suspended sentence incarcerated. Probation is a favor granted by the trial court, not a right to which a criminal defendant is entitled. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). The conditions for probation, and the decision whether to revoke probation when those conditions are violated, are left to the discretion of the trial court. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

[7] Indiana Code section 35-38-2-3(h) provides that, upon finding a probationer violated the terms of probation, the trial 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 (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.

We review probation violation decisions and the sanctions imposed therefor for an abuse of discretion. Heaton, 984 N.E.2d at 616. An abuse of discretion occurs “only where the trial court's decision is clearly against the logic and effect of the facts and circumstances” before the trial court. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).

[8] Byers argues there were several circumstances that the trial court failed to consider when it decided his sanction after revoking his probation. When a probationer admits the allegations against him, a trial court can give a probationer an opportunity to present mitigating circumstances to support an argument his probation should not be revoked. Killebrew v. State, 165 NE.3d 578, 582 (Ind. Ct. App. 2021), trans. denied. “However, in determining the appropriate sentence upon finding a probation violation, trial courts are not required to balance aggravating and mitigating circumstances.” Id. Byers asserts the trial court should have given more mitigating weight to his “acceptance of responsibility[,]” and the facts that he turned himself in, that he completed treatment at a sober living facility, and that he performed approximately half of his community service hours. (Br. of Appellant at 13.)

[9] The probation department presented evidence Byers violated his probation by committing a new crime, testing positive for illegal substances, and failing to complete his community service, receive treatment in a sober living facility, and attend a mental health assessment. The probation department also presented evidence that Byers had not paid all his ordered fines. In addition, Byers admitted committing crimes prior to those for which he was on probation and the revocation of one of those prior probationary periods. Based thereon, we conclude the trial court did not abuse its discretion when it ordered him to serve the remainder of his suspended sentence incarcerated. See Castillo v. State, 67 N.E.3d 661, 665 (Ind. Ct. App. 2017) (holding no abuse of discretion in ordering defendant to serve his previously suspended sentence because of his blatant disregard for the terms of his probation); see also Killebrew, 165 N.E.3d at 582 (probationer's commission of new offenses supported revocation of his entire suspended sentence); and see Overstreet v. State, 136 N.E.3d 360, 364 (Ind. Ct. App. 2019) (revocation of probationer's suspended sentence appropriate when he tested positive for illegal drugs and had prior criminal history), trans. denied.

Conclusion

[10] The trial court did not abuse its discretion when it ordered Byers to serve the remainder of his suspended sentence. Accordingly, we affirm.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code §§ 9-30-5-2(a) & (b).

2.   Ind. Code § 35-44.1-3-1(a)(1).

3.   Ind. Code § 9-24-19-2.

4.   The record does not indicate the offenses or sentence in this case.

5.   Ind. Code § 9-19-6-24.

May, Judge.

Tavitas, J., and Felix, J., concur.