GRAHAM v. STATE (2026)

MEMORANDUM DECISION

[1] Kevin Graham violated his probation by impersonating a police officer while serving probation for fraud. The trial court revoked 1,640 days of his previously suspended sentence and ordered him to serve that sentence in the Indiana Department of Correction. Graham argues the sanction was too harsh. We affirm.

Facts

[2] Graham pleaded guilty to Level 5 felony fraud on a financial institution. Because he also was found to be a habitual offender, the trial court sentenced him to eight years, with four years to be served on home detention through community corrections and four years suspended to probation. After Graham completed approximately 22 months on home detention without incident, the trial court modified his sentence, transitioning him to probation ahead of schedule. The new sentence consisted of 864 days on home detention, with credit for 864 days, and 2,056 days—about 51/212 years—of imprisonment, suspended to probation.

[3] Less than two years into his probation, Graham committed a new offense. After witnessing an automobile accident, Graham followed the fleeing driver and drew a “prop gun” in an attempt to stop him.¹ Tr. Vol. II, p. 22. Graham had lost the privilege of carrying a firearm years earlier. While on the phone with 911, Graham could be heard screaming commands at the driver: “[L]et me see your hands, turn off the car, get on the ground, walk backwards to me, hands on your head, hands on top of the car.” Id. A jury in Marion County found Graham guilty of Class A misdemeanor impersonation of a public servant.

[4] The State petitioned to revoke Graham's probation, and Graham admitted to violating his probation by committing the new offense. In mitigation of his sanction, he testified that he ran a traffic and security business with his twin brother, that he served as the primary caretaker for three family members with disabilities, and that he had been pre-approved for home detention monitoring in Marion County. On cross-examination, however, Graham admitted to his extensive criminal history, which included multiple convictions for crimes of dishonesty. Among them were Class C felony forgery in two counties and Level 6 felony fraud.

[5] Graham disputed several convictions in his criminal history, claiming his innocence as to some and alleging his depression was responsible for others. The trial court did not find him credible. It observed that Graham “ha[d] an explanation for everything that excuses [his] conduct,” that he minimized his criminal history, and that he was “not accepting responsibility for” the impersonation offense. Id. at 33. The court also noted that Graham was on probation for a crime of dishonesty, had then committed yet another crime of dishonesty, and that his “lengthy prior criminal history” involved crimes of dishonesty. Id. The court ultimately revoked 1,640 days of Graham's 2,056-day suspended sentence and terminated probation as unsuccessful. Graham appeals this sanction.

Discussion and Decision

[6] Graham does not appear to challenge the partial revocation of his probation as a sanction. Instead, he challenges only the trial court's decision to require that he serve that sanction in prison, rather than on home detention. We find his claim unpersuasive.

[7] “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). “The trial court determines the conditions of probation and may revoke probation if the conditions are violated.” Id. “If the court finds that the person has violated a condition at any time before termination of the probation period, and the petition to revoke is filed within the probationary period,” the court has the choice of several sanctions. Ind. Code § 35-38-2-3(h). These include “order[ing] execution of all or part of the sentence that was suspended at the time of initial sentencing.” Id. We review a trial court's sanctioning decision for an abuse of discretion, which occurs when “the decision is clearly against the logic and effect of the facts and circumstances.” Prewitt, 878 N.E.2d at 188.

[8] Graham offers a variety of reasons why the trial court should have placed him back on home detention rather than send him to prison. He claims he was only attempting to help police when he committed the impersonation of a public servant offense that violated his probation. Graham also points to his prior success on home detention and the financial difficulties that his brother, with whom he works, will suffer if he is incarcerated. Graham also assists three relatives with disabilities by serving as their benefits payee and helping them navigate day-to-day life. However, none of these reasons, either individually or collectively, establish an abuse of discretion under these circumstances.

[9] Graham was on probation for fraud—a crime of dishonesty—when he committed the new crime of dishonesty that prompted this probation revocation. He did so while carrying a “prop gun,” having already lost his firearm privileges. Tr. Vol. II, p. 22. His criminal history, which the trial court considered, includes multiple prior felony convictions for forgery and fraud. It reflects a pattern of dishonesty that has persisted over many years and was serious enough to support a habitual offender finding. See Puckett v. State, 183 N.E.3d 335, 339 (Ind. Ct. App. 2022) (extensive criminal history supports revocation).

[10] Graham's attempt to negate or minimize his culpability, both as to his prior convictions and the impersonation offense, suggests his unwillingness to accept responsibility for his offenses, as the trial court found. The trial court's refusal to impose a sanction which would allow Graham to avoid incarceration again was justified under the circumstances, particularly when the court's prior leniency is considered.

[11] Despite Graham's lengthy criminal record, the trial court had sentenced him in the original fraud prosecution to community corrections, rather than prison, and then transitioned him to probation ahead of schedule. But Graham answered this leniency by proceeding to commit a new crime while on probation. In addition, the trial court opted for a partial revocation of Graham's probation when it was entitled by statute to revoke the entire suspended sentence. See Ind. Code § 35-38-2-3(h). This was despite the trial court's finding that Graham's accounts of his criminal history and the impersonation offense were not credible. See Overstreet v. State, 136 N.E.3d 260, 263 (Ind. Ct. App. 2019) (noting that a probationer must be given an opportunity to present mitigating evidence but declining to credit probationer's mitigating evidence in the same way that the probationer sought).

[12] Graham has failed to show that the trial court abused its discretion in revoking 1,640 days of his suspended sentence and ordering that time executed in the Department of Correction. We therefore affirm the trial court's judgment.

FOOTNOTES

1.   The record does not reveal the nature of the “prop gun.” Tr. Vol. II, p. 22.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.