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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: THOMAS W. VANES Crown Point, Indiana ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana CHRISTOPHER A. AMERICANOS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTONIO D. CHANDLER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A03-0612-CR-559

APPEAL FROM THE LAKE COUNTY SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-0411-FB-00097

OCTOBER 15, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BARTEAU, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant Antonio D. Chandler appeals the trial court's revocation of his probation. We affirm. ISSUE The sole issue is whether the trial court abused its discretion by ordering Chandler to serve his four-year suspended sentence. FACTS AND PROCEDURAL HISTORY In November 2004, the State charged Chandler with three counts of robbery, each as a Class B felony. Chandler entered into a written plea agreement, wherein he agreed to plead guilty to an amended count of robbery as a Class C felony in exchange for the State's dismissal of the remaining two robbery charges and recommendation that Chandler serve a four-year sentence, all of which would be suspended to probation. In April 2005, the trial court accepted the plea agreement and sentenced Chandler, pursuant to the plea agreement, to four years suspended to probation. On December 30, 2005, the State filed a Petition to Revoke Probation, in which it alleged that Chandler had failed to report to the probation department and failed to pay probation user fees. On February 23, 2006, the trial court held a revocation hearing, during which Chandler asked the trial court to leave him on probation and presented testimony from his family members, who indicated that they would help Chandler report to his probation meetings and pay his fees. Chandler's probation officer informed that trial court that she had given Chandler chances to comply with his probationary terms before she filed the revocation petition and that "probation [was] not apt to receive him 2

back." Appellant's Appendix at 63. The trial court told Chandler that it was going to "work with [him] and get [him] to do some other constructive things with [his] life" and warned him that the court would have to put him in jail if he did not follow the rules of probation. Id. at 65. The trial court continued the matter for a status hearing on May 25, 2006, released Chandler from jail, and instructed him to report to probation with the additional condition that he obtain counseling. On April 4, 2006, the State filed a Second Petition to Revoke Probation, in which it alleged that Chandler had violated probation by failing to pay probation user fees and by being arrested on April 2, 2006, for driving with a suspended license with a prior conviction, a Class A misdemeanor, and operating a motor vehicle by an unlicensed driver, a Class C misdemeanor. 1 On April 27, 2006, the trial court held a revocation hearing, during which the State agreed to withdraw the revocation allegation regarding Chandler's arrests. The trial court left Chandler on probation, released him "on [his] own recognizance" with instructions for him to start paying his fees, ordered him to report to the probation department, and continued the matter until the May 25, 2006, status hearing. Id. at 67. The May status hearing was reset multiple times, and on September 6, 2006, the State filed an Amended Petition to Revoke Probation, in which it alleged that Chandler had violated probation by: (1) failing to pay probation user fees and court costs; and (2)

The record does not explain how Chandler could have been charged with both operating while never receiving a license and operating with a license that had been suspended.

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engaging in criminal activity when he was charged with driving while suspended with a prior conviction, a Class A misdemeanor; operating a motor vehicle without ever receiving a license, a Class C misdemeanor; and speeding on September 5, 2006. On September 27, 2006, the State filed a Second Amended Petition to Revoke Probation, alleging that, in addition to the allegations in the September 6th revocation petition, Chandler violated probation by: (1) engaging in additional criminal activity when he was charged with driving while suspended with a prior conviction, a Class A misdemeanor, and having an expired license plate, a Class C infraction on September 8, 2006; (2) failing to attend a scheduled probation appointment; and (3) failing to enroll in counseling as ordered by the trial court on February 23, 2006. On October 5, 2006, the trial court held a probation revocation hearing on the second amended revocation petition. Chandler admitted that he violated probation as alleged but asked the trial court to consider his "extenuating circumstances" with regard to his violations. 2 Id. at 87. During the hearing, Chandler's probation officer pointed out that the trial court had been repeatedly dealing with Chandler since he started probation and recommended that the trial court order Chandler to serve his entire four-year suspended sentence. When questioning Chandler about his probation violations, the trial court said, "What am I going to do with you? You know it's pretty bad when we get tired and just throw up our hands and say forget it?" Id. at 92. The trial court determined that

Chandler argued that he failed to go to his probation appointment because his grandmother had a heart attack or stroke and that he committed the driving offenses because he was asked to go to the pharmacy to get a prescription for his grandmother.

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Chandler violated probation and initially considered sentencing Chandler to sixty days in the Lake County Jail. After the trial court learned that Chandler's probation was not finished until April 8, 2009, the trial court stated: You've got a long time to go. Do you want to keep coming back and forth messing around with this, come messing with me all the time or do you just want to go on and go to jail and get through with it? . . . Because it might be easier if you just go ahead and do your time and then we're through with each other because I've got a feeling you're gonna [sic] be back and forth. Id. at 95. The probation officer suggested that, as an alternative, the trial court could see if Chandler qualified for Community Corrections. The trial court revoked Chandler's probation and postponed imposing a sentence until Chandler had a placement evaluation by Community Corrections. Chandler did not qualify for Community Corrections, and on October 24, 2006, the trial court ordered Chandler to serve his previously suspended four-year sentence and unsatisfactorily discharged him from probation. DISCUSSION AND DECISION Chandler argues that the trial court abused its discretion by ordering him to serve his four-year suspended sentence. We review a trial court's sentencing decision in probation revocation proceedings for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). "Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment." Brabandt v. State, 797 N.E.2d 855, 860 (Ind. Ct. App. 2003). A defendant is not entitled to serve a 5

sentence in a probation program; rather, such placement is a "matter of grace" and a "conditional liberty that is a favor, not a right." Id. (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied). Pursuant to Indiana Code

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