MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Aug 16 2019, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General
Madison, Indiana                                         Indianapolis, Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Heather Gutzwiller,                                      August 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-701
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         69D01-1807-CM-207
                                                         69D01-1808-CM-218



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019                    Page 1 of 7
[1]   Heather Gutzwiller appeals the trial court’s order that she serve the remainder

      of her sentence incarcerated after she violated probation. We affirm.



                                Facts and Procedural History
[2]   On January 15, 2019, Gutzwiller entered guilty pleas to two counts of Class A

      misdemeanor operating a vehicle while intoxicated 1 stemming from two

      different 2018 cause numbers (“CM-207” and “CM-218”). The trial court

      sentenced Gutzwiller to 365 days with 243 days suspended to probation under

      CM-218, to be served consecutive to 365 days with 363 days suspended to

      probation under CM-207, for an aggregate sentence of 730 days with 606 days

      suspended to probation. Gutzwiller received 124 days of credit for pre-trial

      detention. One of the terms of Gutzwiller’s probation was that she abstain from

      drug and alcohol use.


[3]   On January 22, 2019, the State alleged Gutzwiller violated her probation

      because she tested positive for alcohol and methamphetamine. On January 24,

      Gutzwiller admitted she violated her probation, and the trial court revoked her

      probation and ordered her to serve 602 days on home detention. As part of the

      terms of her in-home detention, Gutzwiller was ordered to abstain from alcohol

      and illegal substances and to complete the Court’s Addiction and Drug Services

      program.




      1
          Ind. Code § 9-30-5-2(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019   Page 2 of 7
[4]   On January 29, 2019, the State alleged Gutzwiller committed a Community

      Corrections violation by consuming alcohol. On February 1, 2019, the State

      filed a Request to Convert Home Detention. On February 27, 2019, the trial

      court held a hearing regarding the alleged Community Corrections violation.

      Gutzwiller admitted she violated the terms of her in-home detention by

      consuming alcohol. The trial court granted the State’s motion to covert

      Gutzwiller’s in-home detention into incarceration, ordering Gutzwiller to serve

      an aggregate sentence of 483 days incarcerated.



                                  Discussion and Decision
[5]   Probation 2 is a favor granted by the State, not a right to which a criminal

      defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App.

      2005), trans. denied. A court may order execution of all or part of the sentence

      that was suspended at the time of the initial sentencing if the court finds the

      person has violated a condition at any time before termination of that

      probationary period. Ind. Code § 35-38-2-3(h).


[6]   The conditions for probation and whether to revoke probation when those

      conditions are violated are left to the discretion of the trial court. Heaton v.




      2
       Gutzwiller alleges error in the trial court’s revocation of her probation. We note, however, that Gutzwiller
      appeals from the trial court’s revocation of her Community Corrections placement. Because “[w]e treat a
      hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing
      on a petition to revoke probation,” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), we address Gutzwiller’s
      argument as she has framed it.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019                    Page 3 of 7
      State, 984 N.E.2d 614, 616 (Ind. 2013). We review probation violation

      determinations and sanctions for an abuse of discretion. Id. An abuse of

      discretion occurs if the decision is “‘clearly against the logic and effect of the

      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.’” K.S. v. State, 849 N.E.2d 538, 544 (Ind.

      2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). “We

      will second-guess the fact-finding court only when it responds to that factual

      context in an unreasonable manner.” Tapia v. State, 753 N.E.2d 581, 585 (Ind.

      2001).


[7]   Gutzwiller argues the trial court abused its discretion when it revoked the entire

      portion of her suspended sentence and converted her placement to incarceration

      because she has mental health problems, she admitted to the violations, and she

      did not have a significant criminal record. However, Gutzwiller violated the

      terms of her probation by consuming alcohol and methamphetamine less than a

      week after she was sentenced. When the trial court placed her on in-home

      detention through Community Corrections, it also ordered her to complete the

      Court’s Addiction and Drug Services program. Less than a week after her

      placement on in-home detention, Gutzwiller violated the terms of the program

      by using alcohol. When asked why she did not complete the Court’s Addition

      and Drug Services program, Gutzwiller testified “[n]ot all programs work the

      same for each individual” and she did not like the structure of the program so

      she just “gave up.” (Tr. Vol. II at 39.) Based thereon, we cannot say the trial




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019   Page 4 of 7
       court abused its discretion when it ordered Gutzwiller to serve the remainder of

       her suspended sentence incarcerated.


[8]    Gutzwiller argues the facts of her case are similar to those in Puckett v. State, 956

       N.E.2d 1182, 1188 (Ind. Ct. App. 2011), and Johnson v. State, 62 N.E.3d 1224,

       1232 (Ind. Ct. App. 2016), two cases in which our court determined the trial

       court had abused its discretion when it revoked each defendant’s probation and

       ordered the suspended sentences executed. Both Puckett and Johnson are

       distinguishable.


[9]    In Puckett, we reversed the trial court’s order that Puckett serve his sentence

       executed after he violated probation because in its order “the trial court plainly

       and repeatedly expressed its displeasure with Puckett’s original plea

       agreement.” Puckett, 956 N.E.3d at 1187. We determined, “[a] trial court’s

       belief that a sentence imposed under such an agreement was ‘too lenient’ is not

       a proper basis upon which to determine the length of a sentence to be imposed

       following a revocation of probation.” Id. That is not what happened here, as

       the trial court did not comment on Gutzwiller’s underlying plea agreement and

       Gutzwiller does not allege the judge relied on his personal feelings when

       determining her placement after she violated the terms of her Community

       Corrections placement.


[10]   In Johnson, our court reversed the trial court’s order that Johnson serve the

       remainder of his sentence incarcerated following a violation of the rules of his

       Community Corrections placement. Johnson, 62 N.E.3d at 1231. Johnson,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019   Page 5 of 7
       who suffered from well-documented mental and cognitive difficulties which

       made him unable to fully understand some of the terms of his placement, was

       sentenced to seven years executed to home detention and four years suspended

       to probation for Level 3 felony neglect of a dependent resulting in serious bodily

       injury. 3 After he had completed almost a year of home detention, Community

       Corrections alleged he strayed from an approved location as part of his home

       detention and that he had left his apartment without authorization.

       Additionally, Johnson had not promptly paid his Community Corrections fees.

       For these violations, the trial court ordered the remainder of the seven-year

       portion of Johnson’s sentence served in the Department of Correction. Id. at

       1227-29. We held:


                  [U]nder the circumstances reflected in the record, including the
                  level of Johnson’s functioning and his resources, his previous
                  successful placement on work release, the nature of the violation,
                  and the severity of the court’s sentence, we conclude that the trial
                  court abused its discretion in finding that Johnson’s violation
                  warranted serving the entirety of the remaining portion of his
                  executed sentence in the [Department of Correction].


       Id. at 1231.


[11]   In comparison, Gutzwiller was not successful in completing even a month on

       probation or Community Corrections, she did not indicate she had cognitive

       disabilities which made her unable to understand the requirements of her




       3
           Ind. Code § 35-46-1-4.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019    Page 6 of 7
       probation or Community Corrections placement, and her violations were

       numerous and directly related to a continuing substance abuse problem. Based

       thereon, we cannot say the trial court abused its discretion when it ordered

       Gutzwiller to serve the remainder of her suspended sentence incarcerated.



                                               Conclusion
[12]   The trial court did not abuse its discretion when it ordered Gutzwiller to serve

       the remainder of her suspended sentence incarcerated after she violated both

       probation and her Community Corrections placement within two months of

       being sentenced. Accordingly, we affirm.


[13]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019   Page 7 of 7
