MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jan 10 2018, 9:13 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Robert Bucher, Jr.,                               January 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1707-CR-1671
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1208-FC-72



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018            Page 1 of 9
                                Case Summary and Issue
[1]   For the third time in this case, the trial court revoked Thomas Bucher, Jr.’s

      probation and ordered him to serve two years of his previously suspended

      sentence in the Indiana Department of Correction (“DOC”). On appeal,

      Bucher raises the sole issue of whether the trial court abused its discretion in

      revoking his probation and ordering him to serve two years of his sentence in

      the DOC. Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   In 2012, Bucher stole tools and equipment from his father’s garage. Following

      his arrest, the State charged Bucher with burglary, a Class C felony, and theft, a

      Class D felony. Bucher pleaded guilty to burglary and the trial court sentenced

      him to eight years with six of those years suspended to probation.


[3]   Bucher was released from incarceration and began probation on June 28, 2013.

      Bucher’s conditions of probation included the following:


              (a)      [Bucher] shall obey all conditions of probation set forth by
                       the Dearborn County Probation Department . . . .

              ***

              (e)      [Bucher] shall not consume alcoholic beverages or illegal
                       controlled substances and shall be tested for consumption
                       of [the] same at any time by the Probation Department or
                       law enforcement officer.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 2 of 9
      Appellant’s Appendix, Volume Two at 43. On January 28, 2014, the State filed

      a notice of probation violation alleging Bucher tested positive for a controlled

      substance. Bucher admitted the violation and the trial court revoked one year

      of his previously suspended sentence. On December 11, 2015, the State filed a

      second notice of probation violation alleging Bucher tested positive for ethyl

      glucuronide and ethyl sulfate—metabolites of alcohol. Bucher also admitted

      this violation and the trial court revoked another year of Bucher’s suspended

      sentence; this left four years suspended to probation on his original sentence.

      Bucher served this sentence and was eventually re-released to probation.


[4]   Bucher’s probation officer, Jennifer Benson, scheduled an appointment with

      him on Friday, March 24, 2017. Several days prior to their meeting, Bucher

      called Benson and asked to reschedule to the following Monday. Bucher

      informed Benson his job required him to work out of town and she agreed to

      reschedule the appointment. On March 24, Bucher’s ex-girlfriend called the

      probation office and informed Benson that Bucher had been drinking alcohol

      and using illegal narcotics. Benson then drove to Bucher’s home and observed

      him in his driveway working on his car, not out of town as he claimed. From

      this point on, Benson had Bucher submit to a drug test every Monday,

      Wednesday, and Friday.


[5]   On Monday, May 15, and Friday, May 19, Bucher again tested positive for

      metabolites of alcohol. Bucher’s drug screens from Wednesday, May 17, and

      Monday, May 22, both returned negative for alcohol or narcotics. The State

      filed its third notice of probation violation on May 23. Convinced the tests

      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 3 of 9
      were false positives, Bucher submitted a hair follicle to United States Drug

      Testing Laboratories in Des Plaines, Illinois. This method of testing found no

      traces of ethyl glucuronide in Bucher’s hair.1 While awaiting his test results,

      Bucher skipped six probation appointments and drug screens from May 24 to

      June 5, 2017. The State subsequently amended its notice of probation violation

      to reflect these missed appointments.


[6]   The trial court held a probation revocation hearing on June 29, 2017. At the

      hearing, the State submitted into evidence Bucher’s two failed drug screens and

      his hair follicle test. Bucher called an independent forensic toxicologist, Harry

      Plotnick, to testify. Dr. Plotnick testified the hair follicle test and urine

      screenings of May 15 and May 19 were incompatible with each other and he

      had no explanation for why the urine screens tested positive but the hair follicle

      test came back negative for alcohol. The trial court found insufficient evidence

      that Bucher consumed alcohol in violation of the conditions of his probation;

      however, the trial court determined Bucher violated probation by skipping six

      probation appointments and revoked two years of Bucher’s suspended sentence.

      Bucher now appeals.



                                  Discussion and Decision




      1
       Hair follicle testing has a window of detection for alcohol of up to three months. Exhibits, Volume I at 14.
      By contrast, drug screens of urine have a window of two to three days. Id.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018            Page 4 of 9
[7]   Probation is a conditional liberty that is a privilege, not a right. Heaton v. State,

      984 N.E.2d 614, 616 (Ind. 2013). A single violation of a condition of probation

      is sufficient to revoke probation. Id. at 618. When a trial court determines

      probation has been violated and issues sanctions, we review for abuse of

      discretion. Id. at 616. An abuse of discretion occurs where the decision is

      clearly against the logic and effect of the facts and circumstances before the

      court, or when the court misinterprets the law. Id. A trial court that has

      determined probation has been violated may “[o]rder execution of all or part of

      the sentence that was suspended at the time of initial sentencing.” Ind. Code §

      35-38-2-3(h)(3).


[8]   Bucher does not challenge the trial court’s determination he violated the

      conditions of his probation by skipping six probation appointments and drug

      screens. See Brief of Appellant at 9, 12 (admitting Bucher “technically violated

      his probation . . . .”). However, Bucher maintains his offenses were “minor

      violation[s]” caused by a “vengeful ex-girlfriend” which are undeserving of the

      revocation of probation and imposition of a two-year sentence in the DOC. Br.

      of Appellant at 5, 13. In support of his argument, Bucher cites to two cases,

      Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012), and Johnson v. State, 62

      N.E.3d 1224 (Ind. Ct. App. 2016).


[9]   In Ripps, the defendant pleaded guilty to child molesting and part of his

      sentence was suspended to probation. A condition of the defendant’s probation

      was that he not live within 1,000 feet of a youth program center. Several years

      into his probation, the defendant, who was suffering from terminal cancer,

      Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 5 of 9
       congestive heart failure, and pulmonary disease, moved into an assisted-living

       facility that was located within 1,000 feet of a youth program center. The

       defendant registered his address with the sheriff’s department. The trial court

       revoked the defendant’s probation and he was ordered to serve the nearly three

       years remaining of his sentence in prison. On appeal, we considered the

       “totality of the circumstances” presented by the case:


               [Defendant] was sixty-nine years old and suffering from serious
               health issues, including terminal cancer; he was attempting to
               adhere to his probation conditions, as evidenced by his going to
               the sheriff’s office to register his new address; although he was
               initially in violation of the residency restriction, evidence reveals
               he was taking steps to correct the violation by finding a new
               residence; while he did live within 1,000 feet of the public library,
               this was only so by about twenty feet and some ambiguity exists
               in how this distance was measured; and, last, [the defendant]
               previously served time in prison for a crime that was later
               vacated as violative of our constitutional ex post facto provision.


       Ripps, 928 N.E.2d at 328. Under these circumstances, we held it “was

       unreasonable for the trial court to determine [the] violation warranted revoking

       [the defendant’s] probation.” Id.


[10]   In Johnson, the defendant, who had learning, cognitive, and memory

       deficiencies, pleaded guilty to neglect of a dependent and the trial court

       sentenced him to eleven years, with seven of those years served on home

       detention and the remainder suspended to probation. Shortly thereafter,

       community corrections filed a notice alleging the defendant was behind in

       probation fees, was given permission to travel to the social security office and

       Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 6 of 9
       instead went elsewhere, went to the bank three hours before he was permitted

       to, moved the monitoring equipment in his apartment, and was seen sitting

       outside his apartment on the porch. Following a hearing, the trial court

       modified the defendant’s sentence to seven years executed in the DOC.


[11]   On appeal, this court agreed the “evidence supports the trial court’s

       determination that [the defendant] violated the term of his community

       corrections placement that he not leave his apartment and its decision to revoke

       the placement.” Johnson, 62 N.E.3d at 1231. However, we again looked to the

       totality of the circumstances and concluded the defendant’s “level of . . .

       functioning and his resources, his previous successful placement on work

       release, the nature of the violation, and the severity of the court’s sentence”

       warranted a finding the trial court abused its discretion. Id. at 1231. We

       ordered the trial court to place the defendant on work release. Id. at 1232.


[12]   Notwithstanding the cases cited by Bucher, the trial court did not abuse its

       discretion in revoking his probation. Cumulatively, this was Bucher’s third

       probation violation in this case, as he previously violated probation for

       consuming alcohol and controlled substances. The trial court revoked one year

       of Bucher’s probation for each of the prior violations. With these previous

       abuses of probationary grace, Bucher presumably knew the trial court would

       not tolerate any further missteps. And although we are sympathetic to Bucher’s

       situation, submitting a hair follicle sample to an independent laboratory did not

       require him to miss six probation appointments and drug screens over the



       Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 7 of 9
       course of two weeks. The trial court indicated the same in its statement to

       Bucher.


               The Court: Mr. Bucher, do you know where you would be at
                          right now had you not missed all these
                          appointments that I found that you missed, and the
                          tests? . . . You would be out of [jail] and you would
                          be leaving because I found insufficient evidence on
                          the drug testing. But that didn’t happen.


       Transcript at 60-61. Bucher claims he could not attend these appointments

       because he knew he would be arrested and therefore unable to prove his

       innocence if he met with his probation officer. However, Bucher offers no valid

       reason why he could not petition the trial court for a hair follicle test, or, in the

       alternative, notify his probation officer that he intended to submit a hair follicle

       test and then attend the rest of his appointments, as he is required to do by the

       terms of his probation.


[13]   As to the trial court’s revocation of two years of Bucher’s probation, the

       sentence is harsh but does not constitute an abuse of discretion. Indiana Code

       section 35-38-2-3(h)(3) permits a trial court to order a probationer to serve either

       all or part of a suspended sentence upon a single violation of probation. Bucher

       has now violated probation three times for failing to adhere to the terms of his

       probation’s alcohol and controlled substances policy and for failing to attend

       probation appointments. Each of the previous two times, the trial court

       revoked one year of Bucher’s probation. Because Bucher has previously

       struggled to adhere to the terms of his probation, we cannot say the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 8 of 9
       revocation of an additional two years of his sentence constitutes an abuse of

       discretion.



                                               Conclusion
[14]   The trial court did not abuse its discretion in revoking Bucher’s probation and

       ordering him to serve two years in the DOC. Accordingly, we affirm the trial

       court’s order and sentence.


[15]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 9 of 9
