MEMORANDUM DECISION
[1] Charles Richard Etherton appeals the trial courts order revoking his probation for his failure to pay child support and ordering him to serve his previously suspended three and one-half-year sentence. Etherton claims the State did not prove that he recklessly failed to pay his child support obligation and arrearage.
[2] We affirm.
Facts and Procedural History
[3] In July 2021, Etherton pleaded guilty to Level 6 felony possession of methamphetamine in case number 39C01-2101-F5-48 and two counts of Level 6 felony non-support of a dependent child in case number 39C01-2011-F6-1289. The trial court sentenced him to two and one-half years for the possession conviction. The court ordered Etherton to serve that sentence consecutive to two concurrent terms of two years for each non-support of a dependent child conviction, all of which resulted in an aggregate sentence of four and one-half years. The court then suspended Ethertons sentences to probation. As a condition of probation, Etherton was ordered to pay his current child support obligation and an additional $57 per week toward his $11,735.40 arrearage. Appellants App. p. 63.
[4] In December 2022, the trial court revoked Ethertons probation in case number 39C01-2011-F6-1289 because he had used methamphetamine and had failed to pay child support. Id. at 73. The trial court ordered Etherton to serve 365 days of his previously suspended sentence in jail.
[5] On September 20, 2023, the State filed a petition to revoke Ethertons probation in both case numbers, alleging that he had not made payments toward his current child support obligation or the arrearage since his February 18, 2023, release from incarceration. Id. at 79-80. The State also alleged that Etherton had not made “good faith or reasonable efforts” to find and maintain employment. Id. at 80.
[6] At the November 21 fact-finding hearing, Etherton admitted that he had violated his probation. Etherton stated that he had not been consistently employed since being released from jail in February. Tr. p. 8. He had only made a few child support payments and his arrearage had increased. Id. at 7-8.
[7] The trial court held the dispositional hearing on January 31, 2024. Etherton testified that he had been working for a home remodeling company for three or four months. Id. at 17. However, the company only had sufficient business for him to work three days in January. Id. at 17-18. Etherton stated that he had applied for a job at another company but had not heard back. Id. at 18. Etherton also admitted that he was previously employed at a factory but quit the job because he did not care for “factory work.” Id. at 25. He also admitted that, at thirty-nine-years-old, his only monthly obligation is his cell phone bill. Id. at 29. He testified that he had paid his cell phone bill with “some money saved back.” Id. at 19, 29. He also testified that he lives with his mother and she pays the household bills. Id. at 29-30. Ethertons child support arrearage had also increased to over $17,000.
[8] The trial court concluded that Ethertons failure to pay child support was “reckless.” Id. at 34. In its written order, the court made the following findings:
6. Here, the Defendant admitted to violating the terms of his probation. The record reflects this violation as committed recklessly, insofar as the Defendant is not disabled. He lives at home with his mother and sponges off her financially. He does not pay rent or does so only sporadically. He eats the food his mother buys at the grocery store. The Defendant has no other expenses or financial obligations preventing him from making payments towards his child support obligation.
7. Further, the Defendant has had multiple opportunities to seek and maintain employment. He claims his current job of construction is “seasonal” and he has tried to find construction work in the area without success. But the Defendant found work at 2 different non-seasonal jobs and quit. Not because the work was too difficult or physically taxing. He just didnt like it. This is not acceptable and demonstrates the Defendant has not made bona fide efforts to pay his support obligation.
Appellants App. pp. 91-92. For these reasons, the trial court revoked Ethertons probation in both case numbers and ordered him to serve his remaining, previously suspended sentence of three and one-half-years.
[9] Etherton now appeals.
Discussion and Decision
[10] Etherton claims he was “making bona fide attempts” to pay his child support, and, therefore, the trial court abused its discretion when it revoked his probation and ordered him to serve his remaining three and one-half year previously suspended sentence. “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, 187-88 (Ind. 2007). “Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed.” Id.
[11] The State bears the burden of proving the alleged violation by a preponderance of the evidence, and we will consider all the evidence most favorable to the judgment of the trial court without reweighing that evidence or judging the credibility of the witnesses. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). When the trial court finds that the defendant has violated his probation, the court may impose one or more sanctions including ordering execution of all or part of the sentence that was suspended when the defendant was initially sentenced. Ind. Code § 35-38-2-3(h). Moreover,
[i]t is within the discretion of the trial court to determine probation conditions and to revoke probation if the conditions are violated. In appeals from trial court probation violation determinations and sanctions, we review for abuse of discretion. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law[.]
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quotation and citations omitted).
[12] Indiana Code section 35-38-2-3(g) provides that a trial court may not revoke a defendants probation for failing “to comply with conditions of a sentence that impose financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.” When the State seeks a probation revocation based on the nonpayment of financial obligations, it bears the burden to prove that the probationers failure to pay was reckless, knowing, or intentional. Runyon v. State, 939 N.E.2d 613, 617 (Ind. 2010). The probationer must “show facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.” Id.
[13] The trial court found that Ethertons failure to pay child support and his arrearage was “reckless.” Indiana Code section 35-41-2-2(c) provides that “[a] person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.”
[14] Etherton argues that his failure to pay child support was not reckless, and, in support, he cites the child support payments he had made while the probation revocation was pending and his two attempts to find other employment. He also argues that because his children will not receive child support while he is incarcerated, the trial courts decision was “illogical” and “unsupported by the facts as presented at his probation revocation hearing.” Appellants Br. at 12.
[15] Etherton did not make any child support payments for nearly seven months after he was released from incarceration in February 2023. He only made child support payments after the State filed a petition to revoke his probation in September 2023. Even though he has a substantial child support arrearage and current support obligation for his two children, Etherton quit two jobs because he did not like factory work. He testified that he only worked three days in January 2024. Tr. pp. 17-18. Etherton applied to only two other companies after his employer was unable to schedule him to work for more than a few days per month. He also admitted to having money “saved back” that he did not use to pay his child support obligation and arrearage but to pay his cellphone bill, which is his only monthly obligation aside from child support. Tr. pp. 19, 28-30.
[16] This evidence supports the trial courts conclusion that Ethertons failure to pay his child support obligation and arrearage was reckless and that he failed to make reasonable efforts to find and maintain employment. Unfortunately, Etherton will be unable to make child support payments while he is incarcerated, but that will not change the status quo as he has only made sporadic payments while on probation. For all of these reasons, we conclude that the trial court did not abuse its discretion when it revoked Ethertons probation and ordered him to serve the remaining three and one-half years of his previously suspended sentence.
[17] Affirmed.
Mathias, Judge.
Altice, C.J., and Bailey, J., concur.