Samuel D. Clark, Jr. v. State of Indiana (NFP)

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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JOHN T. WILSON Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana ARTURO RODRIGUEZ II Deputy Attorney General Indianapolis, Indiana FILED Nov 12 2010, 9:37 am IN THE COURT OF APPEALS OF INDIANA SAMUEL D. CLARK, JR., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 33A01-1004-CR-236 APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Mary G. Willis, Judge Cause No. 33C01-0905-FC-11 NOVEMBER 12, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BOEHM, Senior Judge CLERK of the supreme court, court of appeals and tax court Defendant-Appellant Samuel D. Clark, Jr., appeals the trial court s revocation of his term of home detention and suspended sentence. The only issue is whether the trial court abused its discretion when it revoked Clark s home detention and ordered that he serve his full five-year sentence at the Department of Correction. We find that the trial court acted within its discretion. In October 2009, Clark pleaded guilty to the offense of operating a motor vehicle while privileges are forfeited for life, a Class C felony. Clark was sentenced to five years, with three years suspended to probation, and he was permitted to serve the twoyear executed portion of his sentence on home detention. On February 23, 2010, the State filed a petition to revoke Clark s home detention and, shortly thereafter, the State also petitioned to revoke Clark s suspended sentence. At a March 22, 2010 hearing on both of the State s petitions, Clark admitted to violating the terms of home detention and probation by consuming alcohol and using marijuana. The court revoked Clark s sentence of two years on home detention, as well as his three-year suspended sentence, and ordered Clark to serve the full five years in the Department of Correction. This appeal ensued. The trial court s order was plainly authorized by statute. If the court finds a violation of a condition of home detention, it may modify conditions of probation, extend probation for up to one year or [o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code ยง 35-38-2-3(g) (2008). 2 A trial court s sanctions for a probation violation are reviewed for an abuse of discretion. Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009). Clark asserts that the trial court abused its discretion by ordering him to serve the full five year sentence in the Department of Correction. Five operating while intoxicated convictions led to Clark s status as a habitual traffic violator and eventually to his lifetime license suspension. Notwithstanding the probation officer s conclusion that Clark was not a good candidate and the failure of prior attempts at home detention and probation to correct his behavior, the trial court initially gave Clark a period of home detention and suspended the remainder to probation. The home detention/probation conditions signed by Clark in the instant case prohibited his consumption of alcohol or use of marijuana during his home detention and probation terms. At the revocation hearing, Clark admitted to violating these conditions after warnings by home detention officers to stop drinking or he would have a problem. Tr. p. 26. Clark also failed to comply with the probation condition requiring him to obtain a substance abuse evaluation. Given Clark s repeated violations and convictions, we cannot say that the trial court abused its discretion in determining that Clark had been given numerous breaks without success and therefore ordering him to serve his full sentence at the Department of Correction. Tr. p. 26. The judgment of the trial court is affirmed. ROBB, J., and BROWN, J., concur. 3

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