Timothy S. Welker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Timothy S. Welker appeals the trial court's order that revoked his probation and ordered him to serve twelve months incarcerated. Welker presents two issues for our review, which we restate as:

1. Whether the State presented sufficient evidence that he violated his probation; and

2. Whether the trial court abused its discretion when it ordered him to serve his sentence incarcerated.

We affirm.

Facts and Procedural History

[2] In 2020, under Cause Number 18C02-2009-F6-612 (hereinafter “F6-612”), the State charged Welker with Level 6 felony theft ¹ and Class A misdemeanor driving while suspended.² On February 14, 2024, Welker agreed to plead guilty to the theft charge in exchange for the State dismissing the driving while suspended charge. On February 15, 2024, the trial court accepted the plea agreement and imposed a twelve-month sentence. The trial court suspended the sentence and ordered it served consecutive to Welker's sentence in an earlier case (the “Prior Crime”), for which Welker was already serving probation.

[3] On July 3, 2024, while Welker was still serving probation for the Prior Crime, the State filed a petition to revoke Welker's probation in F6-612. The State alleged Welker had violated his probation by committing Class A misdemeanor theft in April 2024 and Level 6 felony theft in May 2024 (collectively, the “Subsequent Crimes”). Welker was convicted of the Subsequent Crimes on August 6, 2024, and August 12, 2024.

[4] On February 13, 2025, the trial court held a hearing on the State's petition to revoke Welker's probation in F6-612. The State presented evidence that Welker committed the Subsequent Crimes in April and May 2024 and was convicted of them in August 2024. The probation officer assigned to work with Welker in F6-612 testified she had not met with Welker before he committed the Subsequent Crimes because he was still on probation for the Prior Crime. The trial court revoked Welker's probation in F6-612 and ordered him to serve his twelve-month sentence incarcerated.

Discussion and Decision

[5] When a defendant accepts a term of probation, he agrees to the conditions thereof “in lieu of imprisonment.” Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018) (quoting Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied). 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). A trial court has discretion to set the conditions of probation and “to revoke probation if the conditions are violated.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Revocation of probation is a two-step process. Id. The court must first determine whether a violation occurred. Id. If the trial court finds the defendant violated the conditions of probation, the trial court may continue the probation, extend the term of probation, or “[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). An offender need only violate one condition of probation for the trial court to revoke his probation. Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied.

1. Revocation of Probation

[6] Welker first argues the State did not present sufficient evidence that he violated his probation because (1) he “was never given proper notice as to the requirements of his probation” and (2) did not know “that his term of probation had commenced.” (Br. of Appellant at 8.) In reviewing the sufficiency of evidence supporting a probation revocation, we consider only the evidence most favorable to the judgment and will affirm if substantial probative evidence supports the trial court's conclusion that the probationer violated a condition of probation. Votra v. State, 121 N.E.3d 1108, 1113 (Ind. Ct. App. 2019).

[7] An offender's probationary period begins immediately after sentencing, even when actual supervision is delayed. Howe v. State, 25 N.E.3d 210, 214 (Ind. Ct. App. 2015). The trial court sentenced Welker to twelve months suspended to probation on February 15, 2024. Accordingly, when Welker committed the Subsequent Crimes in April and May 2024, he was on probation. See Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000) (“Although Crump's actual probation had not yet begun, a defendant's probationary period begins immediately after sentencing.”) (internal quotation omitted), trans. denied.

[8] As for whether Welker violated a condition of probation, we note that a prohibition of additional crimes is a standard condition of probation. See Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (“it is always a condition of probation that a probationer not commit an additional crime”). We have no doubt that Welker understood this expectation as he was already on probation for the Prior Crime. At the revocation hearing, the State presented evidence that Welker was convicted of the Subsequent Crimes. Accordingly, the State presented sufficient evidence that he violated his probation. See, e.g., Ind. Code § 35-38-2-1(b) (if a probationer commits a crime the trial court may revoke his probation); and see, e.g., Pierce v. State, 44 N.E.3d 752, 756 (Ind. Ct. App. 2015) (holding commission of additional crimes demonstrated violation of probation).

2. Revocation of Previously Suspended Sentence

[9] Welker argues the trial court abused its discretion when it ordered him to serve his twelve-month sentence incarcerated. As we noted above, if the trial court finds the defendant violated the conditions of probation, the trial court may continue the probation, extend the term of probation, or “[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). Trial courts have considerable discretion to select appropriate sanctions. Prewitt, 878 N.E.2d at 188. The severity of sanction should depend on the nature of the defendant's violations. Heaton, 984 N.E.2d at 618.

[10] Welker argues the trial court's sanction is “unduly harsh[.]” (Br. of Appellant at 8.) However, the Subsequent Crimes were two more counts of theft, which is the crime for which he was on probation in F6-612, and he committed these two new counts within three months of being sentenced in F6-612. Given these circumstances, we cannot say the trial court abused its discretion when it ordered him to spend his twelve-month sentence incarcerated. See, e.g., Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017) (holding trial court did not abuse its discretion when it ordered Knecht to serve the remainder of his sentence incarcerated when Knecht again committed the crime for which he was on probation).

Conclusion

[11] The State presented sufficient evidence to prove Welker violated his probation by committing the Subsequent Crimes, and the trial court did not abuse its discretion when it ordered Welker to serve his previously suspended sentence. Accordingly, we affirm.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1).

2.   Ind. Code § 9-24-19-2.

May, Judge.

Judges Mathias and Bradford concur. Mathias, J., and Bradford, J., concur.