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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
Jul 07 2010, 9:59 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: KIMBERLY A. JACKSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KURT O. ELDER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 28A04-1002-CR-67

APPEAL FROM THE GREENE SUPERIOR COURT The Honorable Dena A. Martin, Judge Cause No. 28D01-0703-FB-203

July 7, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Kurt O. Elder appeals the trial court's order revoking six years of his probation and requiring him to remain on probation "through the date that [he was] previously scheduled to be released." Tr. at 52. We affirm. Issue We address only one issue: whether the trial court abused its discretion when it revoked six years of Elder's probation. Facts and Procedural History On March 15, 2007, the State charged Elder with class A misdemeanor operating while intoxicated, class C misdemeanor operating while intoxicated, class A misdemeanor possession of paraphernalia, class D felony resisting law enforcement, class D felony maintaining a common nuisance, class A misdemeanor resisting law enforcement, and class B felony possession of cocaine within 1000 feet of school property. On January 14, 2008, Elder pled guilty to class B felony possession of cocaine within 1000 feet of school property, and the other six charges were dismissed. Judge David Holt sentenced Elder to twelve years' imprisonment, with all but thirty days suspended, and eight years' probation. The probation order required Elder to remain on probation until January 14, 2016, and it listed the conditions of his probation, which included not committing another criminal offense and not consuming or possessing any alcoholic beverage. Elder's probation officer filed a petition to revoke suspended sentence on June 17, 2009. The petition alleged that Elder violated the terms of his probation by consuming

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alcohol and by committing four offenses in Adams County: (1) class D felony theft, which occurred on June 3, 2009, when Elder left Wal-Mart without paying for merchandise; (2) class A misdemeanor domestic battery resulting in bodily injury, which occurred on June 7, 2009, against his wife; (3) class A misdemeanor resisting law enforcement, which occurred on June 7, 2009; and (4) class B misdemeanor battery, which occurred on June 7, 2009, against his stepson. Elder pled guilty to the four counts in Adams County and was incarcerated for those offenses. At the probation revocation hearing conducted by Judge Dena A. Martin on December 2, 2009, Elder admitted that he violated the terms of his probation. Judge Martin revoked six years of Elder's probation and ordered Elder to serve six years in prison and to return to probation "through the date that [he was] previously scheduled to be released." Id. at 52. The trial court's written order states that "probation is CONTINUED on the same terms and conditions set forth in the Order of Probation entered January 14, 2008." Appellant's App. at 7. Discussion and Decision "Probation is a matter of grace and a conditional liberty which is a favor, not a right." Noethtich v. State, 676 N.E.2d 1078, 1081 (Ind. Ct. App. 1997). The decision whether to revoke probation is a matter addressed to the sole discretion of the trial judge. Hubbard v. State, 683 N.E.2d 618, 620 (Ind. Ct. App. 1997). A probation revocation hearing is in the nature of a civil proceeding, and an alleged violation need be proven only by a preponderance of the evidence. Baxter v. State, 774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002), trans. denied.

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If the trial court finds that a person has violated a condition of probation, the court may impose one or more of the following sanctions: (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 (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code

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