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.

“As Porter has displayed an unwillingness to avail himself of rehabilitative efforts, we find no abuse of the trial court’s discretion in ordering him to serve two years of his original sentence. … To the extent Porter suggests that the trial court was required to treat his admission as a guilty plea and accord it mitigating weight in a balancing of sentencing factors, we disagree.

“Indiana Code Section 35-38-2-3 sets forth the appropriate procedure, respective duties of the State and courts, and the rights of a defendant, in a probation revocation proceeding,” Bailey continued. “This governing statute imposes no requirement upon the trial court to balance aggravating and mitigating circumstances and issue a sentencing statement when imposing a sanction for a probation violation.”