MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Jan 17 2019, 10:03 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Alan Foutch,                                        January 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1954
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Darrell M. Auxier,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         39C01-1704-F3-373



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019                    Page 1 of 6
[1]   Mark A. Foutch appeals the revocation of his placement in community

      corrections. He contends that the trial court abused its discretion by ordering

      him to serve the remainder of his previously suspended sentence in prison.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In April 2017, the State charged Foutch with Level 3 felony robbery, Level 5

      felony criminal confinement, and Level 6 felony possession of

      methamphetamine. Foutch later pled guilty, pursuant to a plea agreement, to

      Level 5 felony criminal confinement, and the other two counts were dismissed.

      The plea agreement provided for a three-year prison sentence suspended to

      community corrections. On October 18, 2017, the trial court accepted the plea

      agreement, sentenced Foutch accordingly, and placed him on supervised

      probation through Jefferson County Community Corrections for 913 days.


[4]   On March 7, 2018, the State filed a verified petition to revoke Foutch’s

      community corrections placement. The State alleged that Foutch had violated

      his placement by, among other things, committing new criminal offenses,

      testing positive for methamphetamine on two separate occasions, and being

      noncompliant with Centerstone treatment services. The trial court held a

      factfinding hearing on May 2, 2018, regarding the petition.


[5]   At the revocation hearing, Ani Bridges, Foutch’s community corrections case

      manager, testified that Foutch was provided three drug screens during his


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019   Page 2 of 6
      placement. He failed two of them, testing positive for methamphetamine on

      January 31, 2018 and February 14, 2018. Additionally, Bridges testified that

      Foutch had been required to participate in substance abuse treatment at

      Centerstone. After his third appointment on January 16, 2018, Foutch stopped

      attending Centerstone, claiming lack of transportation and “stressors at home”.

      Transcript at 16.


[6]   Additionally, the State presented evidence that Foutch had been arrested and

      charged with new criminal offenses that allegedly occurred near the end of

      February 2018. Foutch was charged with possession of methamphetamine,

      unlawful possession of a hypodermic needle, criminal mischief, and theft.

      Officer Christopher Trapp with the City of Madison Police Department testified

      and provided details of the arrest and the evidence and contraband found in

      Foutch’s home.1 Foutch bonded out after this new arrest and was placed on

      lockdown by community corrections. Thereafter, he had six different days of

      electronic monitoring violations. He was arrested and reincarcerated in the

      Jefferson County Jail on March 8, 2018.


[7]   Foutch testified at the revocation hearing and acknowledged that he was still

      having “a little bit” of substance abuse issues at the time he was placed on

      community corrections. Id. at 33. He testified that he used methamphetamine

      only twice during his time in community corrections and that he did so because



      1
       Among other things, officers recovered a syringe loaded with methamphetamine from a nightstand in the
      bedroom Foutch shared with his girlfriend. A number of other used syringes were also in the same location.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019                Page 3 of 6
      of life stressors, including unemployment, utilities being shut off, and sick

      relatives. Foutch testified that transportation issues kept him from following

      through with treatment at Centerstone.


[8]   At the conclusion of the evidence, the trial court found that Foutch had violated

      the terms of his probation by using illegal drugs. The court noted, specifically,

      the two times Foutch tested positive for methamphetamine. Thereafter, at the

      sentencing hearing on June 27, 2018, the trial court revoked the balance of

      Foutch’s suspended sentence. Foutch now appeals.


                                            Discussion & Decision


[9]   It is well established that probation is a matter of grace left to trial court

      discretion, not a right to which a criminal defendant is entitled. 2 Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its grace by

      ordering probation rather than incarceration, the trial court has considerable

      leeway in deciding how to proceed. Id. Accordingly, a trial court’s sentencing

      decisions for probation violations are reviewable for an abuse of discretion and

      reversible only where the decision is clearly against the logic and effect of the

      facts and circumstances. Id. “If the court finds the defendant has violated a

      condition of his probation at any time before the termination of the

      probationary period, and the petition to revoke is filed within the probationary




      2
        The same is true with respect to placement in a community corrections program. See Monroe v. State, 899
      N.E.2d 688, 691 (Ind. Ct. App. 2009) (“Both probation and community corrections programs serve as
      alternatives to commitment to the DOC and both are made at the sole discretion of the trial court.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019                 Page 4 of 6
       period, then the court may order execution of the sentence that had been

       suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App. 2007); see also

       Ind. Code § 35-38-2-3(h) (listing three sanctions that may be imposed upon the

       finding of a violation: (1) continue the person on probation with or without

       modification; (2) extend the probationary period; or (3) order execution of all or

       part of the sentence that was suspended at the time of the initial sentencing).


[10]   On appeal, Foutch concedes that he violated probation by failing two drug

       screens. He contends only that his violation did not warrant a revocation of his

       entire suspended sentence. In other words, he claims the trial court abused its

       discretion with respect to the sanction imposed. We cannot agree.


[11]   We initially observe that Foutch received a tremendous benefit under the

       original plea agreement. Not only was a Level 3 felony charge dismissed, but

       the agreement provided for him to serve the advisory sentence of three years for

       his Level 5 felony offense in community corrections rather than prison. The

       trial court accepted the plea agreement despite Foutch’s significant, multi-state

       criminal history and prior probation violations.


[12]   Instead of seizing upon this opportunity of leniency, Foutch tested positive for

       methamphetamine a few months later in January and February 2018.

       Additionally, around this same time, he failed to follow through with required

       substance abuse treatment and was arrested for new criminal offenses. He was

       placed on lockdown after being released from jail on bail and proceeded to

       violate his electronic monitoring on several days.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019   Page 5 of 6
[13]   Before revoking the balance of Foutch’s suspended sentence, the trial court

       stated, “[Foutch] has performed poorly while on Community Corrections and

       as a result the Court does not feel it is advisable for [him] to remain on

       probation.” Transcript at 50. The trial court acted well within its discretion.


[14]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1954 | January 17, 2019   Page 6 of 6
