MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Oct 29 2015, 9:03 am
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                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Gibson Pearson,                                 October 29, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1505-CR-267
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         34C01-1008-FD-177



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 1 of 9
                                       Statement of the Case
[1]   Appellant/Defendant, Jennifer Gibson Pearson (“Pearson”), appeals the trial

      court’s revocation of her probation and order that she serve part of her

      previously suspended sentence for Class D felony theft. At her probation

      revocation hearing, Pearson admitted to violating the conditions of her

      probation by using controlled substances and failing to appear for drug screens,

      but she requested that the trial court allow her to seek treatment for her drug

      addictions rather than serve her previously suspended sentence. At the

      conclusion of the hearing, the trial court chose to revoked her probation and

      ordered her to serve part of her sentence.


[2]   On appeal, Pearson argues that the trial court abused its discretion in ordering

      her to serve her sentence because it should have, instead, fashioned a sanction

      that was based on her individual needs and allowed her to seek drug treatment.

      Because there was evidence that probation was not effective for Pearson, we

      conclude that the trial court did not abuse its discretion in ordering her to serve

      her previously suspended sentence rather than seek drug treatment.


[3]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion in revoking Pearson’s
              probation and ordering her to serve part of her previously
              suspended sentence.




      Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 2 of 9
                                                     Facts
[4]   Pearson pled guilty to Class D felony theft on July 13, 2011. The trial court

      accepted the plea and, in accordance with the terms of her plea agreement,

      sentenced her to three (3) years with an executed sentence of six (6) months to

      be served on in home detention and the rest of the sentence to be suspended to

      supervised probation. The terms of Pearson’s probation included that she could

      not violate any city, state, or federal law and that she could not consume or

      possess any controlled substances, including marijuana, except as prescribed by

      a physician. She was required to submit to alcohol and drug testing as ordered

      by the Probation Department and was informed that a refusal to submit to a

      urine screen would be considered the same as a positive drug screen. Pearson

      signed an acknowledgement affirming that she knew and understood the terms

      of her probation.


[5]   On August 28, 2012, the Probation Department filed a petition to revoke

      Pearson’s probation (“first petition”), alleging that Pearson had tested positive

      for amphetamine and methamphetamine on a drug screen conducted on July

      25, 2012. On November 14, 2012, Pearson admitted to the allegation in the

      petition, and the trial court revoked her probation and ordered her to serve

      eighty-eight (88) days of her previously suspended sentence in the Howard

      County Criminal Justice Center. The trial court also ordered that her probation

      be extended by nine (9) months and that it be tolled during her incarceration.


[6]   Almost two years later, on October 7, 2014, Pearson again tested positive for

      controlled substances—morphine, a heroin metabolite, and codeine. She also
      Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 3 of 9
      tested positive for opiates on November 13, 2014, and failed to report to the lab

      for drug screens on November 6, 2014, and November 19, 2014. On December

      4, 2014, the Probation Department filed a second petition to revoke Pearson’s

      probation (“second petition”) based on these alleged violations.


[7]   On the same day that the Probation Department filed its second petition,

      Pearson again failed to report to the lab for a drug screen, and she also failed to

      report for a drug screen on December 30, 2014. On January 26, 2015, the

      Probation Department filed a third petition to revoke her probation (“third

      petition”) based on these violations. The third petition also alleged that

      Pearson had violated the terms of her probation by committing new offenses in

      Blackford County, including Level 5 felony dealing in methamphetamine;

      Level 6 felony possession of marijuana; Level 6 felony possession of chemical

      reagents/precursors with intent to manufacture; Level 6 felony maintaining a

      common nuisance; and Class A misdemeanor possession of paraphernalia.


[8]   On April 15, 2015, the trial court held an evidentiary hearing on the second and

      third petitions. At the hearing, Pearson admitted that on more than one

      occasion she had tested positive for unprescribed controlled substances and had

      failed to appear for drug screens. She testified that she had been attempting to

      enter a drug treatment program. However, she admitted that one treatment

      center had offered her a spot in its program but that she had not accepted

      because she had not “[felt] that their program [was] going to work for [her].”

      (Tr. 31). At the time of the hearing, she was not enrolled in any drug treatment

      programs. She had been attending a methadone clinic for less than a week, but

      Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 4 of 9
       she also admitted that she had taken heroin in the days before the hearing and

       would likely still test positive on a drug screen.


[9]    In closing argument, Pearson’s attorney argued that:


               She needs treatment[.] [S]he doesn’t need prison. I suppose the
               whole greyhound therapy approach would be frowned upon by
               most[,] but she’s pending in Blackford County and let’s move on,
               trying to work with some folks that maybe we can help. We
               don’t appear to have been able to help Mrs. Pearson. She can’t
               help herself and although I asked [Pearson’s probation officer]
               the questions about what he’s done, it’s not his job to brush her
               teeth, plain and simply. It’s not his job to run around to
               treatment centers and try to find something that will fit her or
               that will help her and I don’t mean to suggest that[.] She needs
               help, [and] we’re not going to give it to her by putting her in
               prison for a suspended portion of her sentence.


[10]   (Tr. 28). In response, the State argued: “then why do we have this petition to

       revoke system? What’s the point if there’s going to be no consequences for

       failure to comply[?] . . . She’s not in jail, she hasn’t done any time in jail on

       these, or very little, on these [revocation petitions]. There should be some

       consequences for these actions.” (Tr. 38-39).


[11]   The trial court found that there was no evidence concerning whether Pearson

       had broken any laws in Blackford County, as alleged in petition three.

       However, the trial court concluded that there was sufficient evidence that she

       had tested positive for use of controlled substances and that she had failed to

       appear for drug screens as alleged in both petitions. The trial court revoked

       Pearson’s probation and ordered her to serve twelve (12) months of her

       Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 5 of 9
       previously suspended sentence, with her probation to then be terminated as

       unsuccessful.


[12]   In its oral probation revocation order, the trial court gave the following

       justification for its decision:


               Your addiction [is] so strong that you are using heroin up until
               the last, just a couple of days ago. It is true that you’ve had,
               since 2012 when you at least knew because of the tests that you
               pled true to the Petition to Revoke for testing positive for illegal
               substances then, that you had a serious problem[.] [A]nd yet
               despite either the assistance of our probation department
               direction or on your own, it seems you’ve not really been very
               serious or sincere about trying to find a solution or a treatment to
               this issue. Or only because we’re here, it seems like you’re
               scrambling now, saying this is what I need to do and now I know
               what I need to do. There needs to be a consequence for violating
               probation. I don’t disagree with the idea that you need to do
               some treatment but I think that you need to also, your probation
               in this case I think just needs to be revoked. There’s no,
               absolutely no point in you continuing with probation in this case.


       (Tr. 40-41). Pearson now appeals.


                                                   Decision
[13]   On appeal, Pearson argues that the trial court abused its discretion in revoking

       her probation and ordering her to serve twelve (12) months in the Department

       of Correction. She asserts that the trial court should have let her seek treatment

       for her drug addiction. In support of this argument, she contends that our

       supreme court held in Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007), that a

       trial court should choose the “most effective and appropriate” sanction for an
       Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 6 of 9
       individual who has violated his or her probation. Here, the State argued that

       there would not be any point to the probation revocation system if there were

       no consequences for violating probation, and the trial court concluded that

       there needed to be a consequence for Pearson’s probation violation.

       Accordingly, Pearson asserts that the trial court focused on “upholding the

       sanctity of the law” rather than fashioning an appropriate individualized

       sanction for her. (Pearson’s Br. 5).


[14]   First, we note that “‘[p]robation is a matter of grace and a conditional liberty

       [that] is a favor, not a right.’” Lampley v. State, 31 N.E.3d 1034, 1037 (quoting

       Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012)). INDIANA CODE § 35-38-2-

       3(h) sets forth a trial court’s sentencing options once the trial court has found a

       probation violation. It provides:

               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.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 7 of 9
       I.C. § 35-38-2-3(h). Our supreme court has held that a trial court’s sentencing

       decisions for probation violations are reviewable using the abuse of discretion

       standard. Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs where the

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


[15]   We disagree with Pearson’s contention that the trial court was “upholding the

       sanctity of the law” rather than fashioning an appropriate sanction for her.

       (Pearson’s Br. 5). Within the context of the rest of the trial court’s oral

       probation revocation order, it is clear that the trial court meant that there

       needed to be a consequence for Pearson’s probation violation because allowing

       her to merely continue on probation while seeking treatment had not worked.

       Specifically, the trial court noted that Pearson had known she had a drug

       addiction since 2012 and had not been “very serious or sincere about trying to

       find a solution or a treatment to this issue.” (Tr. 40-41).


[16]   Further, it was within the trial court’s discretion to revoke Pearson’s probation

       and order her to serve part of her previously suspended sentence. See I.C. § 35-

       38-2-3(h). As the trial court noted, it is clear that probation was not an effective

       solution for Pearson. The trial court had already revoked her probation once in

       2012, and the court had been lenient when it had ordered her to serve only

       eighty-eight (88) days of her previously suspended sentence. In addition,

       Pearson violated the conditions of her probation multiple times. She also

       admitted that she had declined to enter a drug treatment program and that she

       had used heroin in the days prior to her probation revocation hearing. In light

       of these factors, we conclude that the trial court did not abuse its discretion in

       Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015   Page 8 of 9
       revoking Pearson’s probation and ordering her to serve twelve (12) months of

       her previously suspended sentence.


[17]   Affirmed.


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




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