Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019 Page 1 of 10

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.

ATTORNEYS FOR APPELLANT

Matthew T. Bates

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Hamer,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 22, 2019

Court of Appeals Case No.

18A-CR-1016

Appeal from the Decatur Superior 

Court

The Honorable Matthew D. 

Bailey, Judge

Trial Court Cause No.

16D01-1512-CM-809

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019 Page 2 of 10

Case Summary and Issue

[1] In 2017, Michael Hamer pleaded guilty to two counts of operating a vehicle 

while intoxicated and one count of driving while suspended, all Class A 

misdemeanors, with an habitual vehicular substance offender enhancement. 

Hamer was sentenced to serve 1,800 days with 790 days executed and 1,010 

days suspended to formal probation. In 2018, while Hamer was on home 

detention, the State filed a petition to revoke probation, alleging that Hamer 

failed three breathalyzer tests and failed to appear for two monthly meetings 

with his case manager. At a hearing, Hamer admitted the violations and the 

trial court revoked his probation and ordered him to serve half of his previously 

suspended sentence in the Decatur County Jail. Hamer appeals, raising one 

issue for our review, namely whether the trial court abused its discretion in 

imposing this sanction for his probation violation. Concluding the trial court 

did not abuse its discretion, we affirm.

Facts and Procedural History 

[2] On December 21, 2015, the State charged Hamer with one count of operating a 

vehicle while intoxicated, a Class A misdemeanor. The State later amended the 

charging information to include an habitual vehicular substance offender

enhancement. While the case was pending, Hamer was charged under a 

separate cause number with operating a vehicle while intoxicated and driving 

while suspended, both Class A misdemeanors. The parties entered into a plea 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1016 | July 22, 2019 Page 3 of 10

agreement to resolve both cases in which Hamer pleaded guilty as charged and 

his executed sentence was capped at three years. 

[3] On July 14, 2017, the trial court accepted the plea agreement, entered judgment 

of conviction, and sentenced Hamer to 1,800 days in the Decatur County Jail,

with 790 days executed and 1,010 days suspended to formal probation. The 

conditions of Hamer’s probation included home detention for 360 days and

monthly meetings with his case manager. He was also prohibited from 

possessing or consuming alcohol. 

[4] Hamer’s probation began July 14, 2017 and was scheduled to end April 19, 

2020. He began home detention on January 9, 2018, and several months later, 

Hamer’s probation officer filed a Verified Petition for Revocation of Probation,

alleging that Hamer violated the conditions of probation by failing portable 

breath tests on January 19, February 2, and February 5, 2018. The petition also 

alleged that Hamer failed to appear for two scheduled monthly meetings with 

his case manager while on home detention. The trial court held a fact-finding 

hearing on April 4 and found Hamer in violation of the conditions of his 

probation. In imposing a sanction for the violation, the trial court stated:

In deciding what the sanction ought to be, I am going to give 

some consideration to the fact that Mr. Hamer did make some 

effort. He’s trying to make some effort to it. I’m also going to 

consider that Community Corrections made efforts to help him 

with his addiction and to overcome his problems by entering into 

a sanctions agreement rather than filing a petition immediately. 

So, I think they made some effort; he made some effort. 

Nonetheless, he is in violation.
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Transcript of Evidence, Volume 2 at 23-24.1 The trial court revoked half (505 

days) of Hamer’s previously suspended sentence and ordered it to be served in 

the Decatur County Jail. Hamer’s probation was terminated as unsuccessful. 

Hamer now appeals. Additional facts will be supplied as necessary. 

Discussion and Decision 

I. Standard of Review

Probation is a matter of grace and a conditional liberty which is a 

favor, not a right. The trial court determines the conditions of 

probation and may revoke probation if those conditions are 

violated. The decision to revoke probation is within the sole

discretion of the trial court. And its decision is reviewed on 

appeal for abuse of that discretion. An abuse of discretion occurs 

when the decision is clearly against the logic and effect of the 

facts and circumstances before the court. Further, on appeal “we 

consider only the evidence most favorable to the judgment 

without reweighing that evidence or judging the credibility of the 

witnesses. If there is substantial evidence of probative value to 

support the trial court’s decision that a defendant has violated 

any terms of probation, the reviewing court will affirm its 

decision to revoke probation.” Woods v. State, 892 N.E.2d 637, 

639-40 (Ind. 2008) (citation omitted).

 

1 After Hamer tested positive for alcohol on January 19, he signed a sanction agreement, in which he

acknowledged his violation and agreed to complete ten hours of community service, a six-week addiction 

program, and write a two-page paper on how using alcohol affects him. See Appellant’s Appendix, Volume 2 

at 55. Hamer again tested positive for alcohol on February 2 and entered into another sanction agreement 

requiring that he complete an additional eight hours of community service scheduled for March 3. Three 

days later, Hamer tested positive for alcohol and entered into another agreement requiring that he contact 

River Valley Resource and complete a workshop. 
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Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012) (some citations 

omitted). In addition, a defendant is entitled to challenge the sanction a trial 

court decides to impose after revoking probation. Stephens v. State, 818 N.E.2d 

936, 939 (Ind. 2004). And we review a trial court’s sentencing decisions for 

probation violations for an abuse of discretion. Knecht v. State, 85 N.E.3d 829, 

840 (Ind. Ct. App. 2017).

II. Sanction for Probation Violation

[5] As our supreme court has explained, the revocation of an individual’s probation 

is a two-step process. Woods, 892 N.E.2d at 640. “First, the court must make a 

factual determination that a violation of a condition of probation occurred. If a 

violation is proven, then the trial court must determine if the violation warrants 

revocation of probation.” Id. If the trial court finds that a violation of 

probation has occurred, it 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 § 35-38-2-3(h). 
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[6] Here, as authorized by statute, the trial court ordered that Hamer execute 505 

days of his previously suspended sentence of 1,010 days. Although Hamer 

admitted to the violations, he challenges the trial court’s imposition of this 

particular sanction by arguing it was an abuse of discretion. Specifically, he 

contends that his sanction is disproportionately harsh in light of the following 

factors: he admitted to consuming alcohol and that he struggles with alcohol; he 

was honest about his violations; he demonstrated a willingness to deal with his 

issues; he complied with the sanctions imposed by Community Corrections for 

the violations, including additional community service hours, a six-week 

alcohol addiction program, and a two-page paper on how alcohol affects him; 

and after each missed meeting with his case manager, he showed up the 

following morning at 8:30 a.m.

[7] In support of his arguments, Hamer relies on this court’s decision in Johnson v. 

State, in which we held that the trial court abused its discretion by revoking the 

defendant’s placement in a community corrections program and ordering him 

to serve the entirety of his sentence in prison. 62 N.E.3d 1224, 1231-32 (Ind. 

Ct. App. 2016). The defendant had been placed on home detention requiring 

him to remain inside his apartment and pay community corrections fees. At 

times, he was near the apartment rather than inside of it. Given the defendant’s 

cognitive deficits, limited resources, previous success in work release, the trial 

court’s harsh sentence, and the technical nature of the violation, this court 

concluded the trial court abused its discretion by ordering the defendant to 

execute the entirety of his sentence. Id. Hamer asserts that the Johnson court
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“relied on a line of precedent reversing unduly harsh sentences for minor 

probation violations[.]” Appellant’s Brief at 10.

[8] In support of its conclusion, the Johnson court relied on Sullivan v. State, 56 

N.E.3d 1157 (Ind. Ct. App. 2016); Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 

2012); and Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011). In Sullivan, 

the trial court revoked the defendant’s community corrections placement after 

he failed to report and, as a sanction, ordered him to serve the entirety of his 

eighteen-month sentence in prison. 56 N.E.3d at 1160. This court concluded 

the trial court abused its discretion by revoking the defendant’s placement and 

ordering him to serve his sentence in prison because he was in the hospital at 

the time he was to report, contacted his attorney, and was under the impression 

his counsel would contact the court and community corrections. Id. at 1162. 

Moreover, in Ripps, this court reversed the trial court’s order revoking the

defendant’s probation and ordering him to serve the remainder of his two year 

and two-hundred and sixty-six-day sentence in prison for failing to register as a 

sex offender and residing within 1,000 feet of a public park or youth center. 968 

N.E.2d at 326-27. The defendant had moved into an assisted-living facility to 

receive care for his medical conditions, which was 980 feet from a public 

library. In concluding the trial court abused its discretion, the court explained:

[The defendant] was sixty-nine years old and suffering from 

serious health issues, including terminal cancer; he was 

attempting to adhere to his probation conditions, as evidenced by 

his going to the sheriff’s office to register his new address; 

although he was initially in violation of the residency restriction, 

evidence reveals he was taking steps to correct the violation by 
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finding a new residence; while he did live within 1,000 feet of the 

public library, this was only so by about twenty feet and some 

ambiguity exists in how this distance was measured; and last, 

[the defendant] previously served time in prison for a crime that 

was later vacated as violative of our constitutional ex post facto 

provision.

Id. at 328. Under the totality of these circumstances, we held the trial court 

abused its discretion by revoking the defendant’s probation and ordering him to 

serve the remainder of his sentence in prison. Id. Lastly, in Puckett, a panel of 

this court held that the trial court abused its discretion by revoking the 

defendant’s probation for failing to register as a sex offender, a condition of 

probation, and ordering him to serve his entire previously suspended sentence

for his child molesting conviction in prison. 956 N.E.2d at 1188. In reaching 

this conclusion, this court reasoned that the trial court relied on improper 

factors in imposing its sanction. Id. at 1187. Specifically, the trial court

expressed its dissatisfaction with the defendant’s original plea– believing it was 

too lenient, a “very generous” agreement for what it considered to be a

“horrendous crime[,]” and that the defendant should have been convicted of a 

more serious crime. Id. Although this court acknowledged the importance of 

the sex offender registry, this court concluded that the trial court’s discussion on

the importance of the registry did not reveal anything egregious about the 

defendant’s failure to register and the defendant was also punished separately 

for not registering. Id. at 1188. Therefore, under the particular circumstances 

of the case, we concluded the trial court’s sanction was an abuse of discretion. 

Id.
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[9] However, the circumstances of Hamer’s violations are clearly distinguishable 

from these cases. Hamer repeatedly violated the terms of his probation 

prohibiting him from possessing or consuming alcohol and requiring him to 

attend monthly meetings. The record reveals that on January 19, February 2, 

and February 5, 2018, Hamer failed a portable breath test by registering a 

.116%, .117%, and .036% blood alcohol concentration respectively. Hamer 

also failed to appear for two scheduled monthly meetings with his case 

manager. 

[10] We disagree with Hamer that the sanction is too harsh. At the fact-finding 

hearing, the trial court gave “some consideration to the fact that Mr. Hamer did 

make some effort. He’s trying to make some effort to it.” Tr., Vol. 2 at 23. It 

also considered community corrections’ efforts in attempting to help Hamer 

overcome his addiction issues by providing a several sanctions agreement 

instead of immediately filing a petition to revoke. The trial court concluded, “I 

think [community corrections] made some effort; [Hamer] made some effort. 

Nonetheless, [Hamer] is in violation.” Id. at 24. An evaluation of the record 

reveals that the trial court took these factors into account, consciously balanced 

Hamer’s efforts with his repeated failures despite efforts by community 

corrections to assist him, and carefully constructed an appropriate sanction. 

Ultimately, the trial court revoked half of Hamer’s previously suspended 1,010-

day sentence rather than revoke his entire sentence, a decision within its sole 

discretion. See Ripps, 968 N.E.2d at 326. As previously noted, “[p]robation is a 

matter of grace and a conditional liberty which is a favor, not a right.” Id. 
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Under the circumstances here, we cannot conclude the trial court abused its 

discretion. 

Conclusion

[11] For the reasons set forth above, we conclude the trial court did not abuse its 

discretion by revoking Hamer’s probation and ordering him to serve half of his 

previously suspended sentence in jail. Accordingly, the judgment of the trial 

court is affirmed.

[12] Affirmed.

Baker, J., and Najam, J., concur.