Probation sanction affirmed on ‘unduly harsh’ appeal

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The Indiana Lawyer on 01/02/2019 by Dave Stafford

A man’s argument that the execution of a suspended sentence for a crime he committed while on probation was an unduly harsh sanction failed before the Indiana Court of Appeals.

The COA on Monday affirmed a Bartholomew Circuit Court order requiring Nicholas L. Porter to serve two years that had been suspended to probation after he was convicted of Level 6 felony theft. The order was issued after Porter admitted he had committed a new offense, unauthorized entry of a motor vehicle, while on probation. Porter also had missed appointments with his probation officer, which he argued was due to being in jail.

On appeal, Porter argued the sanction against him was unduly harsh and the trial court abused its discretion by failing to credit as a mitigator his admission that he committed another crime while on probation. The COA rejected the argument in a four-page order in Nicholas L. Porter v. State of Indiana, 18A-CR-1931.

“Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled,” Judge L. Mark Bailey wrote for the panel, citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The panel also noted Porter’s history of property crimes and probation violations.