      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                              Mar 30 2016, 9:06 am

      this Memorandum Decision shall not be                                   CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
      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
      Jennifer A. Joas                                         Gregory F. Zoeller
      Madison, Indiana                                         Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Denny L. Brown,                                          March 30, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1507-CR-925
              v.                                               Appeal from the
                                                               Dearborn Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      James D. Humphrey, Judge
                                                               Trial Court Cause No.
                                                               15C01-1212-FB-69



      Kirsch, Judge.


[1]   Denny L. Brown (“Brown”) appeals the trial court’s decision to revoke his

      probation, raising the followed restated issue: whether, after Brown admitted to


      Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016        Page 1 of 9
      having violated probation in several respects, the trial court abused its discretion

      when it revoked Brown’s probation and ordered him to serve part of his

      previously-suspended sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In October 2012, while Brown was on probation for a 2011 Ohio breaking and

      entering conviction, Brown entered his sister’s Guilford, Indiana home without

      permission and took items of personal property from her. In December 2012,

      the State charged Brown with Class B felony burglary, for the offenses at his

      sister’s home. In September 2013, Brown entered into a plea agreement, in

      which he pleaded guilty to Class D felony theft, and the State agreed to dismiss

      the burglary charge. He was sentenced to three years in the Indiana

      Department of Correction with two years suspended. The plea agreement

      provided that Brown was to obey all conditions of probation, which included

      that Brown not commit another criminal offense, not consume controlled

      substances unless prescribed by a physician, and allow testing by the probation

      department for the consumption of drugs. Appellant’s App. at 79-85.


[4]   Brown served his executed time on the theft conviction and was released to

      probation on December 5, 2013, to begin his two years of probation. Brown

      desired to return to Ohio, where he had been living, so probation supervision




      Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016   Page 2 of 9
      was transferred to the Ohio Adult Parole Authority (“Ohio Parole”). 1 In

      October 2014, Brown’s probation officer in Indiana, Steve Miller (“Miller”),

      received a violation report from Ohio Parole. Based on this report, the State

      filed a Request for Probation Violation Hearing (“petition to revoke”) at the end

      of October 2014, alleging that Brown had committed a new offense of receiving

      stolen property, tested positive for using controlled substances, and that he

      failed to complete a substance abuse program. Miller received a request from

      Ohio Parole to withdraw the charged violations, in order to allow Ohio Parole

      to work with Brown in an effort to help him complete his substance abuse

      counseling program. In November 2014, the probation department dismissed

      the petition to revoke without prejudice.


[5]   In spring 2015, Miller received another report from Ohio Parole stating that

      Brown had been convicted of the previously-charged receiving stolen property

      offense as an attempt, had been arrested on another charge, had failed more

      drug screens in October 2014 and April 2015, and was not compliant with his

      substance abuse counseling program. On May 12, 2015, the State filed a

      petition to revoke or modify Brown’s probation, alleging that Brown had been

      convicted of attempted theft, repeatedly tested positive for controlled

      substances, and failed to complete a substance abuse program. About a month

      later, in June 2015, the State filed an amended petition to revoke, alleging that

      Brown had been charged with having committed another criminal offense in



      1
          Ohio Adult Parole Authority also ordered Brown to complete an alcoholism council program.


      Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016            Page 3 of 9
      January 2015. Appellant’s App. at 101-02. At a June 22, 2015 hearing, Brown

      admitted to the charged violations, including having committed new criminal

      offenses, failing to complete substance abuse counseling, and failing drug tests

      on June 27, 2014, July 2, 2014, and October 1, 2014. Tr. at 8-9. The matter

      proceeded directly to disposition.


[6]   At the hearing, Brown admitted the alleged violations. Id. However, he

      testified that he had taken the medications pursuant to prescriptions, for which

      he had “the paperwork,” and he noted to the trial court that he was not on

      “street drugs.” Id. at 13, 15. Brown explained that he did not complete the

      substance abuse program because it moved locations. He told the trial court he

      was an expectant father and was employed before being incarcerated, and he

      asked the trial court to extend his probationary period and not “put [him] in

      prison.” Id. at 13. Miller testified that Brown’s evidence regarding

      prescriptions did not “square up” with any of the failed drug screens. Id. at 19.

      He opined that “Ohio Parole has given Mr. Brown every opportunity to avoid

      this situation,” but that Brown had made no efforts to change his behavior. Id.

      at 20. A record from Addiction Services Council, where Brown had attended

      counseling sessions, was admitted into evidence and reflected that Brown

      missed multiple appointments and his behavior failed to “uphold[] treatment

      expectations of the agency.” State’s Ex. 1; Tr. at 23. Miller noted that Brown

      had an “extensive” criminal history in Ohio, as indicated in his pre-sentence

      investigation report, and Miller recommended that Brown be ordered to serve

      the previously-suspended two years of his sentence. Tr. at 20.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016   Page 4 of 9
[7]   After hearing the evidence, the trial court revoked Brown’s probation and

      ordered him to serve one year and 270 days of his two-year suspended

      sentence.2 Brown now appeals.


                                        Discussion and Decision
[8]   Brown argues that the trial court abused its discretion when it revoked his

      probation and ordered him to serve one year and 270 days of his previously-

      suspended two-year sentence. The decision to revoke probation is within the

      sole discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind.

      2008). We review a trial court’s decision to revoke probation for an abuse of

      discretion. Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App. 2006). “An

      abuse of discretion occurs if the decision is against the logic and effect of the

      facts and circumstances before the court.” Id.


[9]   A probation revocation hearing is in the nature of a civil proceeding. Marsh v.

      State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004). Therefore, an alleged

      violation of probation only has to be proven by a preponderance of the

      evidence. Id. When we review the determination that a probation violation has

      occurred, we neither reweigh the evidence nor reassess witness credibility. Id.

      Rather, 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




      2
        The transcript reflects that the trial court concluded the hearing and went off the record, but reopened it to
      recognize that, as Brown was leaving the courtroom, he uttered an obscenity. The trial court advised that
      such behavior would not be tolerated and would result in contempt if it happened again.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016                  Page 5 of 9
       reviewing court will affirm its decision to revoke probation. Woods, 892 N.E.2d

       at 639-40.


[10]   Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

       (Ind. Ct. App. 2006). First, the court must make a factual determination that a

       violation of a condition of probation actually has occurred. Id. Second, if a

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

       revocation of the probation. Id. In making the determination of whether the

       violation warrants revocation, the probationer must be given an opportunity to

       present evidence that explains and mitigates his violation. Id.; see also Sparks v.

       State, 983 N.E.2d 221, 225 (Ind. Ct. App. 2013) (in revocation cases,

       probationer is entitled to present mitigating evidence to demonstrate that

       violation does not warrant revocation), aff’d on reh’g.


[11]   Here, at the fact-finding hearing on the probation violation petition, Brown

       admitted to the violations, which included failed drug screens, a conviction for

       a new offense, and having been charged with other offenses. Tr. at 8. Brown

       argues, however, that “his violation did not warrant a revocation and [] the

       evidence . . . explains and mitigates his violation.” Appellant’s Br. at 7. At the

       hearing, Brown stated, among other things, that he had completed

       approximately seven months of his probation prior to his positive drug screen

       and had completed about four months of substance abuse counseling. He

       acknowledged “a brief lapse” in counseling but asserted it was because the

       program had moved. Tr. at 10-11; Appellant’s Br. at 7. He testified that his

       failed drug tests had to do with prescription narcotics, and he presented

       Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016   Page 6 of 9
       prescription records relative to that claim. He told the trial court that he had

       been employed at White Castle and was expecting his first child. For these

       reasons, he asked the trial court not to revoke his probation. The State

       presented evidence that Brown’s prescriptions did not “square up” or correlate

       to his failed drug screens, and it presented documentation from the Ohio

       substance abuse program that Brown had missed appointments and was not

       properly participating. Tr. at 19. Thus, although Brown provided explanations

       and reasons for his failure to complete the drug counseling and the failed drug

       screens, the State presented evidence of repeated noncompliance. The trial

       court weighs the evidence and assesses witness credibility; we cannot. Woods,

       892 N.E.2d at 639. Considering the evidence most favorable to the trial court’s

       judgment, we find that, here, there was substantial evidence of probative value

       supporting the revocation, and thus, the trial court did not abuse its discretion

       when it revoked Brown’s probation.


[12]   The next issue is whether the trial court abused its discretion by ordering Brown

       to serve one year and 270 days of his suspended-two-year sentence. Pursuant to

       Indiana Code section 35-38-2-3, a trial court has three options if a defendant

       violates probation. It may: (1) continue the defendant’s probation with no

       modifications to the probationary conditions; (2) extend the probationary

       period for not more than one year beyond the original probationary period; or

       (3) order execution of all or part of the suspended sentence. Ind. Code § 35-38-

       2-3(h); Williams v. State, 883 N.E.2d 192, 195 (Ind. Ct. App. 2008). We review

       a trial court’s sentencing decision in probation revocation proceedings for an


       Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016   Page 7 of 9
       abuse of discretion. Cox, 850 N.E.2d at 489 (citing Sanders v. State, 825 N.E.2d

       952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion occurs if

       the trial court’s decision is against the logic and effect of the facts and

       circumstances before the court. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind.

       Ct. App. 2006).


[13]   Here, the trial court ordered execution of part of the two-year suspended

       sentence, which it was authorized to do under Indiana Code section 35-38-2-

       3(h). Specifically, the court ordered that “one year and two hundred seventy

       days will be revoked[.]” Tr. at 24. In reaching that determination, the trial

       court considered Brown’s juvenile and adult criminal history, which included

       two adult felonies, as well as six probation violations. It also considered that

       Brown was convicted of a new offense while on probation in Ohio, he failed

       drug tests, and “he has not taken an opportunity to seek and comply with the

       drug treatment program.” Id. In mitigation, the trial court considered that

       Brown admitted to the violations. Brown urges on appeal that he “had served

       twenty-three days” at the time of the probation violation hearing, and “[t]his

       was a sufficient amount of time served for his violation.” Appellant’s Br. at 8.

       However, “ultimately it is the trial court’s discretion as to what sanction to

       impose under [Indiana Code section 35-38-2-3].” Abernathy, 852 N.E.2d at

       1022. Based on the record before us, we conclude that Brown has not shown

       that the trial court’s decision to require Brown to serve one year and 270 days of

       his two-year suspended sentence was an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016   Page 8 of 9
[14]   Affirmed.3


[15]   Mathias, J., and Brown, J., concur.




       3
         At the probation revocation hearing, the trial court stated, “I’m going to order that one year and 270 days
       will be revoked, probation will terminate.” Tr. at 24. The State asserts that, based on its calculations of the
       time remaining on Brown’s sentence, the trial court “incorrectly releas[ed] Brown from liability for 56 days of
       his original sentence” when it terminated probation following execution of the one year and 270 days, and it
       thereby “seems to depart from the plea agreement[.]” Appellee’s Br. at 14. The State asks us to remand with
       instructions for the trial court “to consider the disposition of the remaining 56 days of Brown’s sentence.” Id.
       We decline this request, initially noting that the State voiced no objection or opposition to the trial court
       regarding its sentencing and, thereby, waived the issue for appeal. Marsh v. State, 818 N.E.2d 143, 145 (Ind.
       Ct. App. 2004). Waiver notwithstanding, we find remand is not necessary. Here, even if, as the State asserts,
       the trial court’s sentencing decision released Brown from some portion of the sentence provided in his plea
       agreement, a trial court is not precluded from imposing a sentence that varies from the terms of the plea
       agreement. See Abernathy v. State, 852 N.E.2d 1016, 1022 (Ind. Ct. App. 2006) (trial court did not abuse its
       discretion by imposing previously-suspended sentence, even though it resulted in total period of incarceration
       that exceeded plea agreement’s cap on executed time); Cox v. State, 850 N.E.2d 485, 491 (Ind. Ct. App. 2006)
       (same). We thus reject the State’s claim that the trial court “depart[ed] from the plea agreement” and that
       remand is necessary. Any inconsistency between the imposed sentence and the plea agreement reflects the
       trial court’s decision of what sanction to impose for a defendant’s probation violation(s), which is a matter
       left to the trial court’s discretion. See Abernathy, 852 N.E.2d at 1021.



       Court of Appeals of Indiana | Memorandum Decision 15A04-1507-CR-925 | March 30, 2016                Page 9 of 9
