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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: MICHAEL P. QUIRK Muncie, Indiana

FILED
Mar 12 2009, 8:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana TIFFANY N. ROMINE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JAMES DELANEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 18A02-0809-CR-788

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees, Judge Cause No. 18C01-0710-FC-49

March 12, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

James Delaney appeals the revocation of his probation. Delaney raises one issue, which we restate as whether his sentence was inappropriate in light of the nature of the offense and the character of the offender. We affirm. The relevant facts follow. On October 9, 2007, the State charged Delaney with battery by means of a deadly weapon as a class C felony. On February 14, 2008, Delaney pled guilty as charged, and the plea agreement capped his sentence at four years. On March 31, 2008, the trial court sentenced Delaney to two years to be served on house arrest with electronic monitoring and two years suspended. On May 20, 2008, the State filed a petition to revoke alleging that Delaney had violated the conditions of his home detention by testing .009% BAC on a breathalyzer test on May 12, 2008 and by testing positive for marijuana twice in April 2008. On June 9, 2008, Delaney admitted the allegations in the petition. On July 3, 2008, after a hearing, the trial court revoked Delaney's probation and ordered Delaney to serve his four-year sentence in the Indiana Department of Correction. Delaney filed a motion to correct error, which the trial court denied. Delaney challenges the appropriateness of the sentence imposed for his probation violation. He argues that, in reviewing his sentence, we should apply the standard set forth in Ind. Appellate Rule 7(B). This rule provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Prewitt v. State, 878 N.E.2d 184, 187-188 (Ind. 2007). 2

However, the Indiana Supreme Court has held that Ind. Appellate Rule 7(B) is not the correct standard to apply when reviewing a sentence imposed for a probation violation. See id. at 188. Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. Id. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Id. (citing Ind. Code

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