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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
Jun 11 2012, 9:57 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: HUGH N. TAYLOR Hugh N. Taylor, P.C. Auburn, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STEVEN G. FRALEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 76A03-1112-CR-565

APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-0909-FD-934

June 11, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Steven G. Fraley appeals from the trial court's order revoking his probation. The following restated issue is presented for our review: Was there sufficient evidence to support the trial court's order revoking Fraley's probation? We affirm. Fraley pleaded guilty to one count of class D felony theft and was sentenced to 545 days imprisonment with 455 days suspended to probation. One of the terms of his probation, which began on March 22, 2010, was that he report to his probation officer "at least once a month or as directed by such officer." Appellant's Appendix at 26. On June 27, 2011, the probation department filed a motion for revocation of probation alleging that Fraley had failed to report to the probation department as directed, failed to report for a scheduled appointment on June 16, 2011, and failed to contact the probation department to reschedule the appointment. The trial court held a hearing on August 29, 2011, for which Fraley appeared late. The probation department filed a second motion for revocation, alleging that Fraley "failed to contact the probation department to schedule an appointment as directed by probation following his last court hearing." Id. at 18. An evidentiary hearing was held on both motions for revocation. Probation

department records indicated that Fraley had not reported to the probation department as directed. Notes taken by his probation officer "indicated that he was non-compliant in most all terms of his probation." Transcript at 6. Probation Officer Christian Sallows testified from Fraley's probation officer's notes at the hearing. Another probation officer, Kimberly Hutchins, also testified at the hearing and was more familiar with Fraley's case. She testified that she was in court for the August 29, 2011 hearing on Fraley's first motion for probation
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revocation and "personally gave Mr. Fraley [Officer] Feller's card and directed him to report to the probation department to schedule an appointment to meet with [Officer] Feller because he had failed to report as directed previously." Id. at 9. Fraley did not report to probation to schedule the appointment. At the conclusion of the hearing, the trial court found that the State established by a preponderance of the evidence that Fraley had violated his probation. Fraley was sentenced to a term of 365 days executed with 60 days credit time. Fraley now appeals. The decision to revoke probation is within the sound discretion of the trial court, and the trial court's decision is reviewed on appeal only for abuse of that discretion. Woods v. State, 892 N.E.2d 637 (Ind. 2008). When conducting our review, we consider only the evidence most favorable to the judgment and do not reweigh the evidence or judge the credibility of the witnesses. Id. If there is substantial evidence of probative value supporting the determination that a defendant has violated any terms of probation, we will affirm the decision to revoke. Id. The State must prove the probation violation by a preponderance of the evidence. Ind. Code Ann.

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