Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 1 of 5

MEMORANDUM DECISION

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

Lawrence M. Hansen

Hansen Law Firm

Noblesville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jonathan Diaz,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 31, 2015

Court of Appeals Case No.

29A02-1502-CR-112

Appeal from the Hamilton Circuit 

Court

The Honorable Paul A. Felix, Judge

Trial Court Cause No.

29C01-1208-FC-8331

Pyle, Judge.

Statement of the Case

[1] Jonathon Diaz (“Diaz”) appeals the trial court’s order revoking his probation 

and ordering him to serve 490 days of his previously 550-day suspended 
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-112 | July 31, 2015 Page 2 of 5

sentence. He argues that this sentence is inappropriate pursuant to Appellate 

Rule 7(B). Because we review a trial court’s imposition of a previously 

suspended sentence for an abuse of discretion, and we find no such abuse in this 

case, we affirm the trial court’s revocation of Diaz’s probation.

[2] Affirmed.

Issue

Whether the trial court abused its discretion by ordering Diaz to serve

part of his previously suspended sentence.

Facts

[3] In January 2013, Diaz pled guilty to Class D felony operating a motor vehicle 

as a habitual traffic violator in exchange for the State’s dismissal of his other 

charges of Class C felony operating a motor vehicle after forfeiture of license

and Class B misdemeanor false informing. Thereafter, the trial court imposed a 

sentence of 1,095 days, with 545 days executed,1 550 days suspended, and 365 

days of probation. 

[4] On August 28, 2014, the State filed a notice of probation violation, alleging that 

Diaz had violated his probation by: (1) failing to report to the Probation 

Department as directed; and (2) committing new offenses—Class C felony 

operating a motor vehicle after forfeiture of his license for life and Class D 

 

1 The trial court ordered Diaz to serve 365 days of his executed sentence in the Department of Correction 

followed by 180 days in the Hamilton County Work Release Program.
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felony identity deception in Howard County in February 2014—and failing to 

report them to the Probation Department within 48 hours.

[5] On January 22, 2015, the trial court held a probation hearing, during which 

Diaz admitted that he had violated his probation as alleged.2 The trial court 

determined that Diaz had violated his probation and ordered him to serve 490 

days of his previously 550-day suspended sentence. Diaz now appeals.

Decision

[6] Diaz argues that the trial court erred by ordering him to serve part of his 

previously suspended sentence in the Department of Correction. Diaz suggests 

that we should apply the standard of review from a sentence review under 

Indiana Appellate Rule 7(B). Our Indiana Supreme Court, however, has 

explained that “[t]his is not the correct standard to apply when reviewing a 

sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184, 

188 (Ind. 2007). 

[7] Upon determining that a probationer has violated a condition of probation, the

trial court may “[o]rder execution of all or part of the sentence that was 

suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3). 

“Once a trial court has exercised its grace by ordering probation rather than 

incarceration, the judge should have considerable leeway in deciding how to 

 

2 Diaz indicated that, in regard to the new offenses, he had pled guilty to the Class C felony, and the Class D 

felony was dismissed.
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proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial 

courts and sentences were scrutinized too severely on appeal, trial judges might 

be less inclined to order probation to future defendants.” Id. As a result, we 

review a trial court’s sentencing decision from a probation revocation for an 

abuse of discretion. Id. (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. 

App. 2005), trans. denied). An abuse of discretion occurs where the decision is 

clearly against the logic and effect of the facts and circumstances. Id. 

[8] The record reveals that the trial court had ample basis for its decision to order 

Diaz to serve part of his previously suspended sentence in the Department of 

Correction. Here, Diaz violated his probation, in part, based on the 

commission of another habitual traffic violator offense, which is the same type 

of offense as the one for which he was placed on probation. Indeed, when 

determining what part of Diaz’s suspended sentence to impose, the trial judge

specifically addressed Diaz and discussed this as part of its reasoning for 

imposing part of his suspended sentence. The trial judge told Diaz that he had 

continued to make bad decisions despite assuring the judge during the January 

2013 sentencing hearing that he would not drive again. The trial court 

acknowledged Diaz’s choice to admit to the probation violations, but it stated 

that Diaz’s actions in committing a new traffic violator offense and not 

reporting the offense to the probation department involved a violation of trust. 

Furthermore, the presentence investigation report reveals that Diaz, who was 

twenty-eight when he committed the original Class D felony driving offense,
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has a rather substantial criminal history, including multiple convictions relating 

to driving without a license. 

[9] Based on the record before us, we conclude that the trial court did not abuse its 

discretion by ordering Diaz to serve part of his previously suspended sentence

in the Department of Correction. For the foregoing reasons, we affirm the trial 

court’s revocation of Diaz’s probation.

[10] Affirmed.

Vaidik, C.J., and Robb, J., concur.