Opinion
23A-CR-2389
06-20-2024
Matthew Thistlethwaite, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kay A. Beehler Terre Haute, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vermillion Circuit Court Trial Court Cause Nos. 83C01-2009-F6-103 83C01-2212-F6-105 The Honorable Jill D. Wesch, Judge The Honorable Robert M. Hall, Pro Tempore
ATTORNEY FOR APPELLANT Kay A. Beehler Terre Haute, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] Matthew Thistlethwaite appeals the revocation of his probation, claiming that the trial court abused its discretion in ordering him to serve the balance of his previously suspended sentence at the Indiana Department of Correction (DOC). Thistlethwaite argues that his probation violations were only minor and, therefore, this cause must be remanded with instructions that the trial court extend his probation.
[¶2] We affirm.
Facts and Procedural History
[¶3] Sometime during the evening of August 31, 2020, Thistlethwaite and his girlfriend, Karen Bean, began arguing at Thistlethwaite's apartment in Vermillion County. Thistlethwaite was "on a rampage," and the argument continued into the next day. Appellee's Appendix Vol. II at 5. Although Bean attempted to leave the apartment, Thistlethwaite grabbed her wrists, threatened to stab her "jugular with scissors," and prevented her from leaving. Id.
[¶4] At some point, apartment manager Lorissa Stevens was informed of the argument. When she approached Thistlethwaite's residence and attempted to intervene, Thistlethwaite grabbed Stevens and held a pair of scissors to her head. After Thistlethwaite released her, she called 911, and Lieutenant Dustin Wall of the Clinton Police Department was dispatched to the scene. When Lieutenant Wall arrived at the apartment complex, he spoke with Stevens and Bean who told him about the incidents.
[¶5] Thistlethwaite was arrested and charged with criminal confinement and two counts of intimidation, all Level 6 felonies (the F6-103 offenses). Thereafter, Thistlethwaite pleaded guilty to all charges pursuant to a plea agreement on March 17, 2021, and was subsequently sentenced to an aggregate term of four and one-half years all suspended to probation.
[¶6] On December 1, 2022, Thistlethwaite was charged with Class A misdemeanor criminal trespass and Class A misdemeanor possession of a controlled substance (the CM-1691 offenses). That same day, the State filed a petition to revoke Thistlethwaite's probation on the F6-103 offenses, alleging the commission of a new criminal offense, failing to report, and failing drug screens.
[¶7] Five days later, Thistlethwaite went to the residence of Christopher Long where he had previously lived. Upon Thistlethwaite's arrival, Long left "to avoid a conflict." Appellant's Appendix Vol. II at 36. At some point, Thistlethwaite grabbed a blanket and left the residence with Long's Jack Russell Terrier wrapped inside. When Long returned, he contacted the police and reported the theft.
[¶8] In the early morning hours of December 7, 2022, Parke County sheriff's deputies encountered Thistlethwaite in possession of Long's dog. Thistlethwaite admitted taking the dog "because he didn't believe that [Long] needed [it]." Id. Thistlethwaite was arrested and charged with Level 6 felony theft (the F6-105 offense). Thistlethwaite subsequently pleaded guilty to that offense.
[¶9] On May 17, 2023, the trial court held a probation revocation hearing and sentencing hearing on the F6-105 offense. The State argued that Thistlethwaite was not a good candidate for continued probation because of his previous probation revocations and criminal history that consisted of two felony and fourteen misdemeanor convictions. Relevant to this appeal, the trial court ordered Thistlethwaite to serve the entirety of his previously suspended time on the F6-103 offenses at the DOC.
[¶10] Thistlethwaite now appeals.
While the State cross-appeals and urges dismissal of this appeal because Thistlethwaite's Notice of Appeal was untimely, it is without dispute that throughout the pendency of the appeal, Thistlethwaite's appellate counsel experienced illness and four deaths in her family. Our motions panel granted appellate counsel permission to file a belated appeal, a motion to consolidate, and an extension to file Thistlethwaite's appellate brief. Counsel advanced compelling reasons relating to her workload and personal obligations that justified the granting of those motions and requests. At no time prior to the filing of its appellee's brief did the State move to dismiss this appeal. Under these circumstances, we deny the State's cross-appeal.
Discussion and Decision
[¶11] "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Ind. Code § 35-38-2-3(h) provides that, upon finding a probationer violated the terms of his probation, the trial court may:
(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.
[¶12] We review a trial court's sanctioning decision following the revocation of probation for an abuse of discretion. Slater v. State, 223 N.E.3d 298, 306-07 (Ind.Ct.App. 2023), trans. denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. at 307.
[¶13] Thistlethwaite claims that the trial court abused its discretion in sentencing him to executed time at the DOC following the probation revocation because the nature of his violations-"trespass and . . . failing to call in for drug screens were not egregious." Appellant's Brief at 10. Notwithstanding this contention, the record demonstrates that Thistlethwaite has a history of probation revocations, and he has amassed two felony convictions and fourteen misdemeanor convictions that include three batteries and two drug possession offenses.
[¶14] Given Thistlethwaite's past and continued failures to lead a law-abiding life or abide by the terms of his probation, we conclude that the trial court did not abuse its discretion in ordering Thistlethwaite to serve the entirety of his previously executed sentence at the DOC. See, e.g., Slater, 223 N.E.3d at 307 (holding that the trial court did not abuse its discretion in revoking the defendant's probation and ordering him to serve a previously suspended sentence at the DOC in light of his criminal history and repeated probation violations).
[¶15] Judgment affirmed.
Bradford, J. and Felix, J. concur.