      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Michael D. Frischkorn                                    Gregory F. Zoeller
      Frischkorn Law LLC                                       Attorney General of Indiana
      Fortville, Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Donald Ray Steger,                                      May 13, 2015

      Appellant-Defendant,                                    Court of Appeals Case No.      May 13 2015, 9:47 am
                                                              48A02-1409-CR-685
              v.                                              Appeal from the
                                                              Madison Circuit Court
      State of Indiana,                                       The Honorable Dennis D. Carroll,
                                                              Judge
      Appellee-Plaintiff.
                                                              Cause No. 48C06-1303-FD-553




      Kirsch, Judge.

[1]   Donald Steger appeals the trial court’s revocation of his probation and its

      imposition of a twelve-month sentence, raising the following restated issues:

              I. Whether the State presented sufficient evidence to support the
              revocation of Steger’s probation; and


      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015      Page 1 of 9
               II. Whether the trial court’s reasons for revoking Steger’s probation
               are improperly reflected in the “Sanctions Order,” the “Abstract of
               Judgment,” and the Chronological Case Summary (“CCS”).
[2]   We affirm and remand with instructions.


                                    Facts and Procedural History
[3]   The State charged Steger with Class D felony possession of methamphetamine,

      Class D felony possession of a controlled substance, Class D felony unlawful

      possession or use of a legend drug, Class D felony maintaining a common

      nuisance, and Class A misdemeanor possession of paraphernalia. Steger

      entered into a plea agreement, whereby he would plead guilty to Class D felony

      possession of methamphetamine,1 and the State would dismiss the remaining

      charges. Sentencing was left open to the discretion of the trial court, with a cap

      of one year on the executed portion of the sentence.


[4]   On August 26, 2013, the trial court accepted Steger’s guilty plea and sentenced

      him to twenty-four months, suspended to supervised probation. The pertinent

      conditions of Steger’s probation required him to abstain from using alcohol and

      illicit drugs, maintain employment of at least thirty-five hours per week, and

      comply with the requirements of the Department of Child Services (“DCS”) in

      connection with an adjudication that his child was in need of services.

      Appellant’s App. at 107.




      1
        See Ind. Code § 35-48-4-6.1(a). We note that, effective July 1, 2014, a new version of this criminal statute
      was enacted; however, because Steger committed his crimes prior to that date, we will apply the applicable
      statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015                   Page 2 of 9
[5]   During June and July of 2014, the Madison County Probation Department filed

      a notice of probation violation, an amended notice, a corrected notice, and

      finally, an “Amended/Corrected Notice of Probation Violation.” Appellant’s

      Br. at 2. The alleged violations included: failure to abstain from the use of

      alcoholic beverages/illicit drugs; failure to maintain employment and/or verify

      employment; and failure to comply with DCS, which has resulted in the

      removal of Steger’s child. Appellant’s App. at 91. Following a probation

      revocation hearing, the trial court found that Steger had violated the condition

      of probation that required him to comply with DCS, revoked his probation, and

      sentenced him to twelve months in the Department of Correction. Steger now

      appeals.


                                     Discussion and Decision

                                I. Sufficiency of the Evidence
[6]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct.

      App. 2014) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The 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). We review a trial

      court’s probation violation determination for an abuse of discretion. Id. (citing

      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)). An abuse of discretion occurs

      where the decision is clearly against the logic and effect of the facts and

      circumstances or when the trial court misinterprets the law. Id. “In considering

      this issue, we note that ‘[a] probation hearing is civil in nature and the State
      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015   Page 3 of 9
      need only prove the alleged violations by a preponderance of the evidence.’”

      Carpenter v. State, 999 N.E.2d 104, 106 (Ind. Ct. App. 2013) (quoting Cox v.

      State, 706 N.E.2d 547, 551 (Ind. 1999)). We consider the evidence most

      favorable to the judgment of the trial court without reweighing that evidence or

      judging the credibility of witnesses. 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. “[P]roof of a single violation of the conditions of probation is

      sufficient to support the decision to revoke probation.” Bussberg v. State, 827

      N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.


[7]   On appeal, Steger contends that the State presented insufficient evidence to

      prove that he violated the condition of probation that required him to comply

      with DCS regarding his minor child. We disagree. During his probation

      revocation hearing, Tamara Rankin, a case manager for the Madison County

      DCS, testified that she had worked with Steger since he was arrested “at the

      meth lab” in March 2013. Tr. at 36. Rankin offered,

               [W]e attempted an informal adjustment through [DCS] due to failed
               drug screens and non-compliance with the recommendations for IOP2
               and at regular attendance. We went to Court and he was moved to a
               CHINS case and that was being monitored from, I believe it was




      2
        While Rankin did not define the meaning of these three initials, we note that IOP can refer to an Intensive
      Outpatient Drug Treatment Program. A.J. v. Marion Cnty. Office of Family & Children, 881 N.E.2d 706, 710
      (Ind. Ct. App. 2008), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015                 Page 4 of 9
               September 2013. In April we asked the Judge to review the case
               because of failed drug screens again.
               ....
               [T]he judge ordered [Steger] to [1] provide the medication upon receipt
               from the [Veteran’s Administration (“VA”] each month, [2] provide,
               provide valid prescriptions for [Rankin] to count and [3] [have] no
               more failed drug screens or [DCS would] remove the child . . . .
      Id. at 36, 38. Steger was specifically instructed to provide DCS “with the actual

      pill bottles when [Rankin] would do the drug screens to confirm the quantities

      available.” Id. at 38. Steger did not call when he received his prescriptions nor

      did he submit his bottles for pill counts, both of which were a violation of the

      order.3 Id. at 39; Appellant’s App. at 59.


[8]   Rankin testified that Steger had been placed in a “previous program through

      IOP,” Aspire, but that he was terminated for non-compliance with the program.

      Tr. at 39. DCS attempted to make it more convenient for Steger to attend

      appointments and changed him to home-based services. Id. at 40. Rankin

      testified that there were “so many missed appointments that they [DCS] have




      3
        The importance of the trial court’s order regarding compliance with DCS was explained by Rankin as
      follows:
      [Steger] is prescribed Hydrocodone as needed. However, he receives 150 pills per month by mail from the
      VA. Whether he takes all of the ones from the previous month or not. Given this, he should have them in
      his system if he is taking them all the time. If he isn’t taking them, they won’t be there, but he should have a
      boatload for me to count.
      When he can’t produce bottles for a pill count, we consider that a problem. On 4/8/14, the [judge] ordered
      him to give me the March & April bottles with the labels on them, which he did not (“didn’t have them”) and
      ordered him to tell me every time he received his medications in the mail, which he has not. He said he
      doesn’t take them anymore, which is clearly not true based on his screens. So at this point he is not calling
      when he gets them or providing the bottles for pill count, both violating the 4/8/14 court order. (As well as
      testing positive for things he is not prescribed . . . .)
      Appellant’s App. at 59.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015                   Page 5 of 9
       now discharged [him] from that as well.” Id. “[A]s a result of Mr. Steger’s

       failed screens, missed IOP treatment appointments, missed home-based

       services, and failure to comply with the Court ordered prescription order, the

       child was subsequently removed from the home.” Id. at 40.


[9]    The trial court placed into context the importance of Steger complying with the

       condition of probation that he comply with DCS as follows:

               I was reviewing the probable cause affidavit Mr. Steger that resulted in
               your initial arrest and prosecution and conviction here and as I
               suspected there were concerns about the methamphetamine labs and
               methamphetamine precursors and use and activity with children
               involved in the area. And in fact some [of] these complaints came
               from neighbors and Child Protective Services got involved early on. In
               fact, Child Protective Services is mentioned in the probable cause
               affidavit. So there is a very good reason why the Court in its
               sentencing order required you to be fully cooperative with Child
               Protective Services. It would be hard to make the argument that what
               we have heard is an illustration of willing and eager participation with
               Child Protective Services. There has been opposition, there has been
               defiance, there has been non-cooperation and that is sanctionable and
               that’s going to happen today. . . . There is no explanation for your
               defiance of and repeated problems with Child Protective Services as
               they work with you and they work with Aspire, so forth. And for that
               you will be sanctioned.
       Id. at 49-51.


[10]   “[P]roof of a single violation of the conditions of probation is sufficient to

       support the decision to revoke probation.” Bussberg, 827 N.E.2d at 44. Here,

       the State presented sufficient evidence to prove that Steger violated the terms of

       probation. The trial court did not abuse its discretion when it revoked Steger’s

       probation for failing to comply with DCS, a condition of his probation.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015   Page 6 of 9
                               II. Correction of Written Orders
[11]   Steger also requests that we remand with instructions to correct the Sanctions

       Order, the Abstract of Judgment, and the CCS (collectively, “the Written

       Orders”) to reflect the trial judge’s stated reasons for revoking Steger’s

       probation. When oral and written statements conflict, we examine them

       together to discern the intent of the trial court. Walker v. State, 932 N.E.2d 733,

       738 (Ind. Ct. App. 2010). We may remand the case for correction of clerical

       errors if the trial court’s intent is unambiguous. Id. (citing Willey v. State, 712

       N.E.2d 434, 445 n.8 (Ind. 1999) (“Based on the unambiguous nature of the trial

       court's oral sentencing pronouncement, we conclude that the Abstract of

       Judgment and Sentencing Order contain clerical errors and remand this case for

       correction of those errors.”)).


[12]   At the probation revocation hearing, evidence was introduced that Steger

       submitted to drug screens. “[A] combination of different drugs were found

       within those eleven (11) screens,” including amphetamines. Tr. at 20. Steger

       had been prescribed numerous drugs. Id. While he did not have a prescription

       for amphetamines, Steger maintained that he took an over-the-counter

       medication that contained amphetamine. Id. at 20, 41-42. Regarding

       employment, Steger testified that he had worked for the same company for

       thirteen years, some of that time being within his probationary period. Id. at

       10-11. He admitted, however, that he had worked only the occasional

       temporary job during the seven-month period prior to his probation revocation

       hearing. Id. at 46-47.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015   Page 7 of 9
[13]   Here, the Written Orders set forth the following three reasons for revoking

       Steger’s probation:

                This matter is before the Court for Evidentiary Hearing on Notice of
                Violation of Probation filed on 7-2-14. State appears by Tanisha
                Grooms. Defendant appears in person and by counsel, Robert Crane.
                Probation Department appears by Sharon Adams.
                Evidence heard and concluded. Court finds Defendant violated the
                conditions of probation as follows: 1) failed to abstain from the use of
                alcoholic beverages/illicit drugs during the period of probation during
                9/30/13 and 6/16/14; 2) failed to comply with [t]he Department of
                Child Services, which resulted in the removal of his child; and 3) failed
                to maintain and/or verify employment.
       Appellant’s App. at 4 (CCS), 15 (Abstract of Judgment),4 17 (Sanctions Order).

       In his oral statement, however, the trial judge specifically found only one

       reason for revoking Steger’s probation – Steger’s failure to comply with the

       requirements of DCS. Appellant’s App. at 107.


[14]   The trial court reasoned:

                I’m convinced we don’t have a sufficient basis on, on the testing [of
                drugs]. Much of the stuff there is valid scripts for. And amphetamine
                is a very amorphous kind of concept amphetamines [sic]. And, but I
                am very concerned about the Court’s order to cooperate with and
                comply with all of the requirements of the Department of Child
                Services. When the State rested, subject to rebuttal, they have a pretty
                good case with the proposition that Mr. Steger had not been
                cooperating with the department . . .




       4
        We note that the Abstract of Judgment omitted some of the third reason, as it stated only “and 3) failed to
       mainta.” Appellant’s App. at 15. It seems reasonable to conclude that the language pertaining to “failed to
       maintain and/or verify employment,” was mistakenly omitted.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015                 Page 8 of 9
       Tr. at 43. Later, the trial court also specifically found, “Thirteen (13) years of

       continuous employment, several months, but that would not be the basis for a

       revocation.” Id. at 46.


[15]   Given the unambiguous nature of the trial judge’s stated reasons for revoking

       Steger’s probation, i.e., exclusively for failing to comply with DCS, we

       conclude that the Written Orders improperly indicate that Steger’s probation

       was revoked, in part, due to his failure to abstain from the use of illicit drugs

       and his failure to maintain and/or verify employment. We therefore remand

       with instructions that the trial court correct the clerical errors by removing these

       two alleged violations from the Written Orders and from any other pertinent

       documents.


[16]   Affirmed and remanded with instructions.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-685 | May 13, 2015   Page 9 of 9
