Opinion
No. 48A02-1101-CR-84
08-08-2011
PHILLIP D. FAIRHOLM, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JOHN T. WILSON Anderson, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
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:
JOHN T. WILSON
Anderson, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0908-FC-268
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAKER , Judge
Appellant-defendant Phillip Fairholm appeals the trial court's order, directing him to serve the entire five years of his suspended sentence following the revocation of his probation. Specifically, Fairholm argues that the trial court erred in ordering him to serve the entire term of the suspended sentence. Finding no error, we affirm the judgment of the trial court.
FACTS
In November 2009, Fairholm pleaded guilty to burglary as a class C felony and theft as a class D felony. The trial court sentenced him to a five-year term and suspended it to probation. The terms and conditions of his probation included: 1) do not consume alcohol or drugs; 2) obey all state and federal laws; 3) notify a probation officer within 48 hours of arrest; 4) do not possess a deadly weapon; 5) do not knowingly associate with a convicted felon; and 5) maintain curfew from midnight to 6:00 a.m.
At 1:44 a.m. on October 24, 2010, Madison County Sheriff's Department Officer Michael Warner noticed Fairholm commit a traffic offense. When he pulled up to Fairholm's car in a parking lot, Officer Warner immediately smelled alcohol emanating from Fairholm. When asked if there were any weapons in the vehicle, Fairholm admitted that he had a loaded gun in the car. A search of the vehicle revealed marijuana and drug paraphernalia, which Fairholm admitted belonged to him. Officer Warner arrested Fairholm, who failed to report the arrest to his probation officer.
On November 5, 2010, Fairholm's probation officer filed a notice of probation violation. Following a hearing, the trial court found that Fairholm violated the terms and condition of his probation and ordered him to serve the entire five-year suspended sentence. Fairholm appeals.
DISCUSSION AND DECISION
Fairholm argues that the trial court erred in ordering him to serve the entire five-year sentence that was originally suspended. We review a trial court's sentence following a probation revocation for an abuse of discretion. Saunders v. State, 825 N.E.2d 952, 957 (Ind. Ct. App. 2005). If the trial court finds that a probationer has violated a condition of probation, the court may order execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g)(3). The consideration and imposition of any alternatives to incarceration are matters of grace also left to the discretion of the trial court. Comer v. State, 936 N.E.2d 1266, 1269 (Ind. Ct. App. 2010).
Here, our review of the evidence reveals that on October 24, 2010, Fairholm was stopped in a parking lot by a police officer who noticed the odor of alcohol emanating from him. He had a loaded gun, marijuana, and drug paraphernalia in the vehicle. He was arrested and failed to tell his probation officer.
In short, Fairholm violated multiple conditions of his probation. Consequently, the trial court did not err in ordering Fairholm to serve the entire term of his suspended sentence. See Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005) (holding that when the trial court finds that the defendant has violated probation, it may order the defendant to serve any part of the sentence that was suspended).
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.