SMITH v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] David W. Smith appeals the revocation of his probation. While he does not dispute that he violated probation, Smith contends that the trial court abused its discretion by revoking the entirety of his four-year suspended sentence.

[2] We affirm.

Facts & Procedural History

[3] On February 22, 2018, Smith entered into a negotiated plea agreement pursuant to which he pleaded guilty to Level 4 felony attempted child exploitation in exchange for dismissal of another charge and a sentence of twelve years, eight of which were to be executed to the Indiana Department of Correction (DOC) and four of which were suspended to probation. The trial court approved the plea agreement on April 13, 2018, and sentenced Smith accordingly.

[4] Smith began serving his term of probation in Ripley County on March 14, 2023, and initially reported to probation as ordered. On April 10, 2023, after an eviction, he relocated to a homeless shelter in Indianapolis. Due to his move, probation directed Smith to contact Ripley County Court Services every Monday at 10:00 a.m. for a phone conference with Director Shannon Schmaltz. Smith was advised that his probation would be transferred to Marion County after he established a qualified residence.

[5] On September 21, 2023, Probation Officer Andy Campbell administered a drug screen to Smith that came back positive for THC. Smith admitted to Campbell that he had used marijuana “on the streets of Indy” three weeks prior. Appendix at 30. About a month later, Smith stopped calling Ripley County Court Services as required and did not speak with Director Schmaltz on October 23, 2023, or thereafter. Further, Smith had left the homeless shelter where he had been staying on October 4 and had not returned.

[6] On November 20, 2023, the State filed a petition to revoke Smith's probation alleging that he used THC, failed to report to his probation officer as directed, and failed to notify probation of a change in address. The next day, the trial court issued a warrant for Smith's arrest.

[7] Smith, however, had hitchhiked to Oregon, where he was homeless and unemployed. In January 2025, Smith was involved in an altercation with another individual at a library in Oregon. He was taken into custody when responding officers discovered that he had an open warrant for his arrest in Indiana. Smith was subsequently extradited to Indiana.

[8] On May 15, 2025, the trial court held a hearing where Smith admitted each of the alleged probation violations. Acknowledging that he “skipped town” within about six months of starting probation, Smith claimed that he “ran” to Oregon out of fear that his probation officer was going to “violate [him]” for not having found a job. Transcript at 14, 10.

[9] At the conclusion of the hearing, the trial court revoked Smith's probation and ordered him to serve the remaining four years of his sentence in the DOC. The trial court explained that Smith had three separate violations and that he was not a good candidate for probation. The court also noted the details of Smith's underlying offense for which he was serving probation and a prior conviction for dissemination of matter harmful to a minor. Further, the court indicated that it was troubled by the fact that Smith was hanging out in a library at the time of his arrest in Oregon, which the court “kn[e]w through training that [libraries are] pretty much where child pedophiles go ․ to find child porn on ․ websites.” Id. at 38.

[10] Smith now appeals. Additional information will be provided below as needed.

Discussion & Decision

[11] 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). Once a trial court has exercised its grace by ordering probation rather than incarceration, the trial court has considerable leeway in deciding how to proceed. Id. Accordingly, a trial court's sentencing decisions for probation violations are reviewable for an abuse of discretion and reversible only where the decision is clearly against the logic and effect of the facts and circumstances. Id. “If the court finds the defendant has violated a condition of his probation at any time before the termination of the probationary period, and the petition to revoke is filed within the probationary period, then the court may order execution of the sentence that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App. 2007); see also Ind. Code § 35-38-2-3(h) (listing three sanctions that may be imposed on the finding of a violation: (1) continue the person on probation with or without modification; (2) extend the probationary period; or (3) order execution of all or part of the sentence that was suspended at the time of the initial sentencing).

[12] On appeal, Smith contends that the trial court abused its discretion by revoking all four years of his suspended sentence. Smith claims that his violations were merely technical and notes that he did not commit a new offense. Further, relying on his own testimony, Smith claims that he had since “gotten on his feet and now had a solid foundation with his fiancé, a place to live, and a reason to complete probation.” Appellant's Brief at 10.

[13] Under the circumstances of this case, Smith's violations of probation were not merely technical. Shortly after testing positive for THC, and only six months after starting his four-year term of probation, Smith fled across the country to Oregon. For about the next fifteen months, Smith made no attempts to contact his probation officer or anyone with Ripley County Court Services, and he remained unemployed and homeless. He returned to Indiana only because he was arrested in Oregon and then extradited back to Indiana. Further, the trial court was not required to accept Smith's self-serving claims that he was now “on his feet” and willing to complete probation. In sum, we cannot say that the trial court's decision to revoke the entirety of Smith's suspended sentence was an abuse of discretion.

[14] Judgment affirmed.

Altice, Chief Judge.

May, J. and Foley, J., concur.