MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                     Mar 11 2019, 8:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John M. Haecker                                          Curtis T. Hill, Jr.
Auburn, Indiana                                          Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devin M. Reith,                                          March 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2440
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Monte L. Brown,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         17D02-1702-F5-14



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019                     Page 1 of 13
                                                  Case Summary
[1]   Devin M. Reith appeals the trial court’s revocation of his probation and the

      imposition of his previously-suspended sentence. We affirm.


                                                          Issues
[2]   Reith raises a single issue on appeal, which we restate as follows:


                 I.       Whether the trial court abused its discretion when it
                          revoked Reith’s probation.


                 II.      Whether the trial court erred when it imposed Reith’s
                          previously-suspended sentence.


                                                          Facts
[3]   On February 22, 2017, Reith struck Evan Rehl in the head with a shovel and

      caused Rehl to suffer a deep laceration on the left side of his head. The incident

      occurred in DeKalb County. On February 22, 2017, the State charged Reith

      with battery, a Level 5 felony. On July 31, 2017, Reith pleaded guilty to one

      count of battery, a Level 5 felony. The plea agreement provided the following

      “additional, specific” terms: “As a term of probation, [Reith] must get

      counseling and apply for Recovery Works.” 1 Appellant’s App. Vol. II p. 31.




      1
          According to the Family and Social Services Administration’s website:

                 Recovery Works focuses on pre-incarceration diversion services and post-incarceration
                 re-entry services, which not only hopes to divert low-level offenders from incarceration to
                 community services, but to reduce recidivism by 20%, as well. Promoting recovery
                 through community support and treatment/intervention is critical in reducing the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019                       Page 2 of 13
[4]   At Reith’s guilty plea hearing, the trial court asked defense counsel, “[J]ust so

      I’m clear, what counseling is contemplated as a possibility?” Defense counsel

      responded, “[P]robation will probably look into that Judge, but, they, they may

      contemplate, um, an anger management class and/or, um, some substance

      abuse stuff. You know, that’s, that’s how we always end up in these sort of

      situations.” Tr. Vol. II p. 12. The trial court then asked Reith, “[Do] you

      understand that [ ]?” Id. Reith responded, “Yes.” Id. The trial court accepted

      the plea agreement.


[5]   At Reith’s sentencing hearing on August 28, 2017, counsel for the State argued

      that the attack on Rehl was “somewhat fueled if not largely fueled by a

      substance abuse issue[.]” Id. at 20. Defense counsel stated,


              . . . [Reith]’s had some subst-some substance abuse, uh, issues.
              Um, and substance abuse played a big part in what was going on
              this evening . . . . I think . . . the State may have hit the nail right
              on the head in that, uh, . . . it’s time to get a handle of things, it’s
              time to deal with the substance abuse, and [Reith] has his first
              child, uh, coming due in November and, uh, maybe that will also
              be, uh, a motivation for some maturity, um, into take, uh, this
              substance abuse, uh, counseling, maybe some, some of the other
              counseling as recommended seriously.




              number of persons with mental health and addiction disorders that are entering our
              criminal justice system.

      https://www.in.gov/fssa/dmha/2940.htm (last visited Feb. 26, 2019).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019               Page 3 of 13
      Id. at 21. The trial court sentenced Reith to five years in the Department of

      Correction, ordered 248 days to be executed in the Department of Correction,

      and suspended four years and 117 days to probation. The court gave Reith 186

      actual days of accrued credit time and deemed the executed portion of Reith’s

      sentence already served at sentencing. In releasing Reith to probation, the trial

      court stated: “. . .[T]here are formal rules of probation, it will include Recovery

      Works, that sort of thing. Um, Devin, again, I, I just can’t stress enough the

      importance of towing [sic] the line. You’re at the end of the line. Okay?” Id. at

      25.


[6]   The Rules of Probation entered as to Reith included the following: “You shall

      not possess, use, sell, distribute, or have in your control any controlled

      substances or synthetic drugs without a prescription”; and “[y]ou shall undergo

      an assessment for possible program placement, if assessment is deemed

      necessary by the staff with the DeKalb County Courts. You shall satisfactorily

      complete any program indicated by [the] assessment.” Appellant’s App. Vol. II

      pp. 95-96. Reith signed the written rules of probation that outlined the

      conditions of his probation on August 28, 2017. The rules of probation stated,

      in part: “You shall undergo assessment for possible program placement, if

      assessment is deemed necessary . . . .[y]ou shall satisfactorily complete any

      program indicated by assessment.” Id. at 96.


[7]   On September 5, 2017, the trial court entered its order and judgment for felony

      sentencing, which included the following provisions:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 4 of 13
                                                   *****


              8. For the conviction of the criminal offense of Battery, a Level 5
              Felony, the Court sentences [Reith] to 5 years of incarceration at
              the Indiana Department of Correction[ ] or the DeKalb County
              Jail 248 days to be served as an executed sentence followed by 4
              years and 117 days of suspended sentence upon his compliance
              with the Rules, Terms and Conditions of Probation, to be
              supervised by the DeKalb County Probation Department.


                                                   *****


              11. Written Rules of Probation have been reviewed with [Reith]
              in open Court, he has signed them promising that he will obey
              them, he has been given a copy of' them, and he is Ordered to
              comply with them. Said Rules are incorporated herein and made
              a part of this Order by reference thereto. Said Rules, which
              include a requirement that [Reith] successfully complete the
              Recovery Works Program, are incorporated herein and made a
              part of this Order by reference thereto.


      Id. at 100-01. Reith subsequently underwent an assessment, which yielded

      recommendations that Reith should complete anger management classes and a

      substance abuse program administered by the Northeastern Center.


[8]   On April 25, 2018, Reith tested positive for amphetamine and

      methamphetamine. On May 24, 2018, the State filed a petition to revoke

      Reith’s probation due to the failed drug tests and his failure to participate in the

      Northeastern Center’s substance abuse program.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 5 of 13
[9]   The trial court conducted a hearing on the petition to revoke Reith’s probation

      on September 10, 2018. Johanna Scott of the DeKalb Probation Department

      testified that, as part of his probation, Reith “was ordered to complete an Anger

      Management Program and then follow through with Northeastern Center”; and

      that, although Reith completed the anger management program, he failed to

      complete substance abuse counseling with the Northeastern Center. Tr. Vol. II

      p. 40. Under direct examination of probation officer Scott, the following

      exchange occurred:


              Q. Uh, Ms. Scott, as part of his probation, was [Reith] ordered to
              complete the program at the Northeastern Center?


              A. Yes, he was ordered to complete an Anger Management
              Program and then follow through with Northeastern Center.


              Q. All right. Did he complete the rest of program [sic] that you
              required?


              A. No sir.


              Q. All right. And did he go to some of those classes?


              A. Yeah, actually he, so according to the reports from
              Northeastern Center, he completed, he was scheduled to
              complete four (4) anger management groups and then he
              attended all four (4) of those. He was also scheduled to complete
              twenty five (25) substance abuse groups in which he attended
              eleven (11), no-showed on eight (8), and cancelled six (6).


              Q. All right. And-

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 6 of 13
        THE COURT: Which program was that?


        THE WITNESS: That’s for the substance abuse group, through
        the Northeastern Center.


        THE COURT: Okay.


        Q. And um, what is, what is, when was the last time he was
        actually participating in that program? Can you tell from the
        report?


        A. The, as far as I can see, the reports state that he has not
        returned to services since his last group on January 3rd, 2018.
        He did contact his counselor on April 25th and discussed that he
        would return to group on May 2nd and he has not done that.


        Q. All right. Um, so as far as you can tell, the last contact, actual
        appointment he went to, the group that he was supposed to was
        January?


        A. That’s correct.


        Q. Okay. And he said he was gonna (sic) restart in May and he
        just didn’t do it?


        A. That’s correct.


        Q. Since then, do you know if he’s had any contact with
        Northeastern Center?


        A. Um, according to these reports, no.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 7 of 13
       Id. at 40-41. Scott also testified that Reith was not a good candidate to continue

       on probation.


[10]   In closing remarks to the trial court, defense counsel acknowledged that Reith

       “did not successfully complete all of the Northeastern Center [substance abuse

       counseling], but he did complete a substantial portion of that and wants to

       continue that.” Id. at 51. Reith also addressed the trial court and stated: “I’m

       willing to go through with, with the Northeastern Center, uh, complete the rest

       of my, my classes that I need to attend.” Id. At the close of the evidence, the

       trial court stated:


               Um, Devin, while . . . I say this at every probation violation
               hearing. While I don’t specifically remember telling you thing
               [sic], it’s part of my mantra, it’s part of what I say, it’s part of
               what I do at every sentencing hearing. Um, before you sign
               those rules of probation, read them over, make certain you
               understand them and then if you have any questions, don’t sign
               them until you’ve got those questions answered either by the
               probation officer or by your lawyer. And the reason I say that is
               because, as I continue on to tell people, um, those are rules that
               you must abide by and if you fail to do that, there is a price to
               pay and I don’t want you to have to pay that price, that’s why I
               want you to read ‘em (sic) and understand ‘em (sic) because as I
               say, I’m going to hold your feet to the fire and that’s what I’m
               going to do. Probation Department is, uh, unwilling to, um,
               work with you any further. They think they’ve gone as far as
               they can do considering your willingness and your, um,
               commitment to the use and, um, clearly you have violated, uh,
               the two (2) allegations made in the Petition in that, uh, you failed
               to fully participate in the NEC programs and you failed, um, a
               chemical test by testing positive for amphetamine and
               methamphetamine[.]

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 8 of 13
       Id. at 54. The trial court then revoked Reith’s probation and ordered him to

       serve the balance of his previously-suspended sentence. Reith now appeals.


                                                   Analysis
[11]   Reith argues that the trial court abused its discretion when it revoked his

       suspended sentence and ordered him to serve the remainder of his previously-

       suspended sentence. Probation serves as an “alternative[ ] to commitment to

       the Department of Correction[,]” and is “[granted] at the sole discretion of the

       trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. “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.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[12]   A trial court determines the conditions of probation and may revoke probation

       if the conditions are violated. Id.; see also Ind. Code § 35-38-2-3(a). Violation of

       a single condition of probation is sufficient to revoke probation. Gosha v. State,

       873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Upon determining that a

       probationer has violated a condition of probation, the trial court may “[o]rder

       execution of all or part of the sentence that was suspended at the time of initial

       sentencing.” I.C. § 35-38-2-3(h)(3).


[13]   When reviewing the sufficiency of the evidence to support a probation

       revocation, we consider only the evidence most favorable to the judgment

       without reweighing the evidence or judging witnesses’ credibility. Figures v.

       State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010). A probation revocation

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 9 of 13
       hearing is civil in nature, and the State’s burden is to prove the alleged

       violations by a preponderance of the evidence. Id. “If there is substantial

       evidence of probative value to support the trial court’s conclusion that a

       defendant has violated any terms of probation, we will affirm its decision to

       revoke probation.” Id. 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 before the court. Id.


[14]   Reith was found to have violated his probation by failing to comply with the

       rules of probation by satisfactorily completing substance abuse counseling with

       the Northeastern Center. 2 Reith does not appeal the revocation based upon his

       use of amphetamine and methamphetamine. Revocation based on one

       violation is sufficient. See Gosha, 873 N.E.2d at 663. Nevertheless, we will

       address Reith’s argument regarding the trial court’s other basis for revoking his

       probation.


[15]   Reith contends that “[o]ther than the anger management program which Reith

       was ordered to complete and did complete, it is not clear which additional

       program he was ordered to complete.” Appellant’s Br. p. 7. We cannot agree.




       2
           The State did not allege that Reith failed to meet his Recovery Works obligation.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019          Page 10 of 13
[16]   When the trial court places a person on probation, the court must specify on the

       record the conditions of the probation and give the person a written statement

       specifying his conditions of probation. I.C. §§ 35-38-2-1; -2.3. “Thus, the law

       generally requires that if a person is placed on probation, the trial court must

       provide the defendant a written statement containing the terms and conditions

       of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d 1231, 1234

       (Ind. Ct. App. 2013). However, we have previously held that the trial court’s

       failure to provide written probation terms may be harmless error if the

       defendant has been orally advised of the conditions and acknowledges that he

       understands them. Id.


[17]   We initially note that, during the trial court’s hearing on the State’s petition to

       revoke Reith’s probation, Reith did not assert that the trial court failed to advise

       him of an explicit condition of probation. It is well settled that a party may not

       present an argument or issue to an appellate court unless the party raised the

       same argument or issue before the trial court. See Craig v. State, 883 N.E.2d

       218, 220 (Ind. Ct. App. 2008). Therefore, Reith has waived his claim.


[18]   Waiver notwithstanding, Reith’s claim fails on the merits. Reith’s signed plea

       agreement provided, “[ ]As a term of probation, [Reith] must get counseling . . .

       .” Appellant’s App. Vol. II p. 31. The trial court also advised Reith that, as a

       term of his probation, he was required to undergo an assessment for services

       and satisfactorily complete any programs that were recommended as a result of

       the assessment. See Gil, 988 N.E.2d at 1234. Additionally, Reith signed written

       rules of probation, which stated: “You shall undergo assessment for possible

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 11 of 13
       program placement, if assessment is deemed necessary . . . .[y]ou shall

       satisfactorily complete any program indicated by [the] assessment.”

       Appellant’s App. Vol. II p. 96.


[19]   Probation officer Scott testified that Reith was referred for anger management

       as well as substance abuse programming. Although Reith completed anger

       management classes, he failed to complete substance abuse treatment through

       the Northeastern Center and also tested positive for methamphetamine and

       amphetamine. The State, thus, proved two probation violations. See Gosha,

       873 N.E.2d at 663 (holding that proof of a single violation is sufficient to permit

       a trial court to revoke probation). The trial court properly revoked Reith’s

       probation.


[20]   As for the trial court’s imposition of Reith’s previously-imposed sentence, it is

       well-settled that, upon determining that a probationer has violated a condition

       of probation, the trial court may “[o]rder execution of all or part of the sentence

       that was suspended at the time of initial sentencing.” I.C. § 35-38-2-3(h)(3); see

       Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017) (finding the trial court

       did not abuse its discretion in ordering probationer to serve his previously-

       suspended sentence after the trial court revoked the probationer’s probation).


[21]   In light of the foregoing, the trial court’s revocation of Reith’s probation and

       imposition of Reith’s previously-suspended sentence is not clearly against the

       logic and effect of the circumstances before the court.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 12 of 13
                                                 Conclusion
[22]   The trial court did not abuse its discretion when it revoked Reith’s probation

       and imposed his previously-suspended sentence. We affirm.


[23]   Affirmed.


[24]   Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019   Page 13 of 13
