Mark Elbert Day, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Mark Elbert Day appeals the sanction imposed by the trial court for his violation of probation. We affirm.

Facts and Procedural History

[2] In June 2021, Day pled guilty to Level 4 felony unlawful possession of a firearm by a serious violent felon in Jennings County. The trial court sentenced him to 10 years, with 8 years to serve and 2 years suspended to probation.

[3] Day was released from prison and started probation in May 2025. His probation was later transferred to Scott County. On January 2, 2026, Day tested positive for methamphetamine. Three days later, on January 5, Day informed Scott County probation that he was being evicted and would no longer be living in Scott County. Day was “ordered to contact his sentencing probation officer in Jennings County immediately.” Appellant's App. Vol. 2 p. 90.

[4] Later in January, Jennings County probation filed a notice of probation violation, alleging that Day violated his probation by testing positive for methamphetamine and not notifying it of his new address (his whereabouts were still unknown). The trial court issued a warrant for Day's arrest, and he was arrested in February.

[5] At the fact-finding hearing, Day testified that he “[n]ever” used methamphetamine on probation and that he communicated with Jennings County probation “through text messaging.” Tr. pp. 15, 20. The trial court found that Day violated his probation by testing positive for methamphetamine and failing to maintain “proper contact” with probation:

Sending unconfirmed text messages to an unmonitored line is legally insufficient to fulfill a probationer's statutory and administrative duty to report and keep the department informed of their whereabouts․ Consequently, the Defendant failed to update probation of his whereabouts, left no forwarding address, and absconded from supervision from January 5, 2026, until his arrest.

Appellant's App. Vol. 2 p. 91.

[6] The trial court proceeded to disposition. Day, then 70, admitted that he had spent “a good portion” of his life in prison. Tr. p. 35. He claimed that he was in “bad health” and asked the trial court to return him to probation. Id. at 36. The court ordered Day to serve the balance of his suspended sentence (426 days) in prison, finding that “a return to probation [was] entirely inappropriate.” Appellant's App. Vol. 2 p. 91. The court relied mainly on Day's criminal history:

The Court notes the Defendant's extensive and profoundly severe criminal history, which includes a prior conviction for Attempted Rape. Furthermore, by his own admission, in the PSI which the Court took judicial notice of by request of the parties, the Defendant's past behavior includes a pattern of extreme violence against women, including the rape of an elderly subject, a separate residential burglary with intent to commit rape, and multiple incidents of grabbing, fondling, or attempting to abduct women from public laundromats under threats of death.

Id. The court also noted that Day's IRAS score showed that he was at high risk to reoffend. The court acknowledged Day's mental-health history, “including a past diagnosis of depression and historical treatment at Madison State Hospital,” but concluded that “his volatile mix of substance abuse, high risk to reoffend, and violent history requires a secure institutional setting for public safety.” Id. at 92.

[7] Day now appeals.

Discussion and Decision

[8] Day contends that the trial court erred in ordering him to serve the balance of his suspended sentence in prison. Trial courts enjoy broad discretion in determining the appropriate sanction for a probation violation, and we review only for an abuse of that discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

[9] Day argues that the trial court should have taken into consideration that he “believed” communicating with probation by text was “authorized,” prison “changed his life,” he was 70 years old and in bad health, and he would like to spend time with family. But Day made these arguments below, and the court rejected them. The court found that given Day's extensive criminal history, which he doesn't acknowledge on appeal, and the fact that he violated his probation not only by failing to notify probation of his whereabouts but also by testing positive for methamphetamine, he was not a good candidate for probation. The trial court did not abuse its discretion in ordering Day to serve the balance of his suspended sentence in prison.

[10] Affirmed.

Vaidik, Judge.

Tavitas, C.J., and May, J., concur.