Tiara N. White 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. FILED Dec 13 2010, 9:47 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DORI NEWMAN Newman & Newman, PC Noblesville, Indiana GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA TIARA N. WHITE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 29A04-1005-CR-341 APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable James D. Humphrey, Judge Cause No. 29D05-0607-FD-4999 December 13, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BARNES, Judge Case Summary Tiara White appeals the sentence imposed by the trial court following the revocation of her probation. We affirm. Issue White raises one issue, which we restate as whether the trial court abused its discretion when it ordered her to serve the remainder of her sentence in the Department of Correction ( DOC ). Facts In 2006, White pled guilty to Class D felony possession of cocaine and Class A misdemeanor driving while suspended. On the possession of cocaine charge, the trial court sentenced White to three years, with 270 days executed on home detention and the remaining two years and ninety-five days suspended. White was also placed on probation for two years. On the driving while suspended charge, the trial court sentenced White to 270 days on home detention to be served concurrent with the possession sentence. On October 30, 2009, the State filed a probation violation information, alleging that White violated the terms of her probation by committing Class D felony theft. Following a hearing, the trial court determined that White violated her probation. The trial court revoked White s probation and ordered her to serve the remainder of her sentence in the DOC. White now appeals. 2 Analysis White argues that the trial court abused its discretion when it ordered her to serve the remainder of her sentence in the DOC following the revocation of her probation. 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. (citing Ind. Code § 35-38-2-3). A trial court s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. Upon the revocation of probation, the trial court may: (1) continue the person on probation, with or without modifying or enlarging the conditions; (2) extend the person s probationary period for not more than one year beyond the original probationary period; and (3) order execution of all or part of the sentence that was suspended at the time of initial sentencing. I.C. § 35-38-2-3(g). White argues that the trial court abused its discretion by ordering her to serve the remainder of her sentence in the DOC because the State recommended she serve one year of her sentence, she will lose her job and not be able to continue her education, it is a hardship on her dependents for whom she is the sole provider, one of her children has a medical condition, she completed home detention without incident, and this was her first probation violation. In addition to these considerations, however, White acknowledges that she did not complete the financial obligations of her probation. White also failed to appear for a hearing on the probation violation, requiring the issuance of an arrest 3 warrant, and she was not eligible for electronic monitoring in Marion County, where she lived. White simply has not established that the trial court abused its discretion by ordering her to serve the remainder of her sentence in the DOC. Conclusion White has not established that the trial court abused its discretion when it sentenced her following the revocation of her probation. We affirm. Affirmed. BAKER, C.J., and VAIDIK, J., concur. 4

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