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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: BRUCE N. ELLIOTT Marion, Indiana

FILED
Feb 19 2008, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EDWARD A. SPENCER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 27A02-0709-CR-771

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Jeffrey D. Todd, Judge Cause No. 27D01-9401-CF-7

FEBRUARY 19, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BARTEAU, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant Edward Spencer appeals the sentence imposed by the trial court following his admission to violating his probation. We affirm. ISSUE Spencer presents one issue for our review which we restate as: whether the trial court abused its discretion by failing to consider Spencer's mental illness as a mitigating factor when it ordered him to serve the entire six years of his previously suspended sentence. FACTS AND PROCEDURAL HISTORY In June 1994, Spencer pleaded guilty to burglary, a Class B felony, and theft, a Class D felony. He was sentenced to 12 years with 6 years suspended for the burglary and to 3 years for the theft, to be served concurrently, and was placed on probation for 6 years. In February 2000, Spencer began serving his six-year probationary term.

Subsequently, in November 2000, a petition for revocation of probation was filed. Spencer admitted to the violation, and was ordered to serve 20 days of his previously suspended sentence and then continue on probation. In July 2005, a revocation of probation was filed based upon charges of child molesting. After pleading guilty to one count of sexual misconduct with a minor as a Class B felony, Spencer admitted to the probation violation at his probation revocation hearing. At the hearing, Spencer

introduced evidence that he has certain mental health issues. The court ordered Spencer

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to serve the previously suspended sentence of 6 years. It is from the imposition of this suspended sentence that Spencer now appeals. DISCUSSION AND DECISION Spencer contends that the trial court abused its discretion by reinstating his entire suspended sentence. Particularly, he argues that the trial court should have considered his mental illness as a mitigating factor when deciding to impose the suspended portion of his sentence. A defendant is not entitled to serve a sentence on probation; rather, such placement is a matter of grace and a conditional liberty that is a favor, not a right. Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). Probation is a criminal sanction in which a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment. Id. The restrictions of probation are designed to ensure that the probationary period serves as a period of genuine rehabilitation and that the public is not harmed by a probationer living within the community. Id. We review a trial court's decision to revoke probation and a trial court's sentencing decision in a probation revocation proceeding for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied. Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). First, the court must make a factual determination that a violation of a condition of probation has occurred. Id. Indiana has codified the due process requirements for probation revocation proceedings at Ind. Code

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