Opinion
23A-CR-3109
08-28-2024
Andrew Leroy Eslinger, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ronald J. Severt, Jr. Wallace Law Firm Rockville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 The Honorable Daniel R. Young, Judge Trial Court Cause No. 83C01-1302-FA-2
ATTORNEY FOR APPELLANT
Ronald J. Severt, Jr.
Wallace Law Firm
Rockville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] Andrew Leroy Eslinger ("Eslinger") appeals the revocation of his probation, contending the trial court abused its discretion in revoking his entire suspended sentence after he admitted to violating his probation. We affirm.
Facts and Procedural History
[¶2] In September 2013, Eslinger pleaded guilty to Class B felony dealing in methamphetamine. The trial court sentenced Eslinger to ten years, with four years executed in the Indiana Department of Correction ("the DOC") and six years suspended to probation. Eslinger completed his executed time and began serving his probation in Vermillion County at some point in 2014. One condition of Eslinger's probation was that he submit to random drug screens, and "[a]ny refusal . . . or a positive (failed) drug screen" could result in a probation violation. Appellant's App. Vol. 2 p. 24.
[¶3] On April 25, 2017, a random drug screen was administered, and Eslinger tested positive for amphetamine, methamphetamine, and THC. Two days later, the State filed a petition to revoke Eslinger's probation based on the drug screen results. On April 27, 2017, the trial court issued a warrant for Eslinger's arrest, but Eslinger was not apprehended until August 2023-over six years later.
[¶4] At a hearing on November 27, 2023, Eslinger admitted to violating his probation by failing the April 2017 drug test. Eslinger testified that, after the violation, he moved to Terre Haute. Eslinger added that, at some point after the warrant was issued, he called and requested to transfer his probation to Vigo County. Eslinger could not "recall really" what was said in response. Tr. Vol. II p. 22. He stopped reporting to probation in Vermillion County. Id. When asked whether he turned himself in or "they finally found [him]," Eslinger responded: "They found me." Id. Eslinger said that, during the intervening years, he had maintained employment, refrained from criminal activity, and provided support for his legally blind fiancee. Eslinger also said that he had been subject to drug screens through his employer and had also participated in drug screens through a provider called Right Choice.
[¶5] After hearing arguments, the trial court revoked the balance of Eslinger's six-year suspended sentence. The court ordered Eslinger to serve four years in the DOC and two years as a direct placement on community corrections. Eslinger now appeals.
Discussion and Decision
[¶6] Eslinger contends the trial court abused its discretion by revoking the entire suspended sentence as a sanction for his violation of probation due to the use of illegal drugs. We review a trial court's sanction in a probation revocation proceeding for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶7] Indiana Code section 35-38-2-3(h) provides as follows:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one (1) 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.
Thus, based on Eslinger's admitted violation of a condition of probation, the court had authority to order execution of all or part of the suspended sentence.
[¶8] Eslinger argues that the trial court "abused its discretion by not giving proper weight to all of the mitigating factors[.]" Appellant's Br. p. 7. According to Eslinger, the mitigating factors included that he had only one reported violation of probation, had not been convicted of new criminal offenses, was now drug free, had only one felony conviction, and cared for his dependent partner. Eslinger claims that the trial court should have imposed a less severe sanction in light of his law-abiding behavior in the years since the probation violation.
[¶9] We disagree. Eslinger absconded from probation for over six years after failing a drug screen. Eslinger simply walked away from the obligations of his probation order and lived life as though he were free from any obligation to the court. Under the circumstances, any mitigating weight to be given to the facts offered by Eslinger is rightly and significantly outweighed by his choice to abscond. Thus, it is no surprise that the trial court found it "incredibly alarming" that Eslinger absconded and knowingly "fail[ed] to surrender to [its] authority . . . under th[e] warrant." Tr. Vol. II p. 25. The court noted that "every day" Eslinger was "out on this known warrant" indicated that he was "thumbing [his] nose at the [c]ourt and the penal system generally." Id. at 27.
[¶10] The court did not abuse its discretion in revoking the entire suspended sentence.
[¶11] Affirmed.
Vaidik, J., and Weissmann, J., concur.