MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                          Feb 28 2019, 11:10 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sarah McClellan,                                         February 28, 2019
Appellant,                                               Court of Appeals Case No.
                                                         18A-CR-2277
        v.                                               Appeal from the Wells Superior
                                                         Court
State of Indiana,                                        The Honorable Andrew K.
Appellee.                                                Antrim, Judge
                                                         Trial Court Cause No.
                                                         90D01-1701-F6-2



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019                   Page 1 of 7
[1]   Sarah McClellan appeals the reinstatement of a portion of her previously-

      suspended sentence. We affirm.


                                         Facts and Procedural History

[2]   In January 2017, the State alleged in its filing information as amended that

      McClellan committed: Count I, possession of a narcotic drug as a level 5 felony

      for, on or about December 12, 2016, knowingly possessing heroin contrary to

      Ind. Code § 35-48-4-6 1; and Count II, unlawful possession of a syringe as a level

      6 felony. McClellan and the State entered into a plea agreement dated

      September 26, 2017, pursuant to which McClellan agreed to plead guilty to

      possession of a narcotic drug as a level 5 felony. The agreement provided that

      McClellan would receive a sentence of three years with the entirety of the

      sentence suspended, she would be placed on probation for three years, and as a

      condition of probation she would be placed on home detention for a period of

      one year to commence immediately upon the completion of her term of home

      detention in cause number 68C01-1111-FC-801 (“Cause No. 801”). On

      September 26, 2017, the court held a guilty plea hearing at which McClellan

      pled guilty to possession of a narcotic drug as a level 5 felony. In providing the

      factual basis, the prosecutor stated that emergency medical service providers




      1
       Ind. Code § 35-48-4-6 governs the offense of possession of a narcotic drug and provides in part under
      subsection (b) that the offense is a level 5 felony if the amount of the drug involved is less than five grams and
      an enhancing circumstance applies. Ind. Code § 35-48-1-16.5 provides that an “enhancing circumstance”
      means, among other things, that “[t]he person has a prior conviction, in any jurisdiction, for dealing in a
      controlled substance that is not marijuana, hashish, hash oil, salvia divinorum, or a synthetic drug, including
      an attempt or conspiracy to commit the offense.”

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019                     Page 2 of 7
      found heroin on or about McClellan’s person, the weight of the drug was less

      than five grams, and McClellan had a conviction for dealing in a Schedule I

      controlled substance on January 30, 2013, in Randolph Circuit Court under

      Cause No. 801 which elevated the offense to a level 5 felony, and McClellan

      agreed the prosecutor’s statements were true. 2 On November 21, 2017, the

      court held a sentencing hearing at which McClellan and the court spoke about

      McClellan’s addiction and sobriety and the court told her that she would be

      subject to imprisonment, which was another reason to continue her sobriety.

      The court sentenced her pursuant to the plea agreement and noted that the

      terms of her probation included that she not fail any drug test.


[3]   On March 21, 2018, the State filed a petition for revocation of suspended

      sentence and probation alleging that McClellan failed a drug screen collected on

      March 1, 2018, for testing positive for methamphetamine. On May 2, 2018, the

      State filed an amended petition for revocation of suspended sentence and

      probation which alleged that, in addition, McClellan failed a drug screen

      collected on April 26, 2018, testing positive for amphetamine and

      methamphetamine. On August 14, 2018, the court held a factfinding hearing.

      The State presented screening result reports indicating that urine collected from




      2
       The presentence investigation report (the “PSI”) stated, with respect to Cause No. 801, that McClellan had
      pled guilty to dealing in a controlled substance as a class B felony and was sentenced to ten years “suspended
      except for 2 years to be served on home detention, and she was placed on probation for 4 years.” Appellant’s
      Appendix Volume II at 77. The PSI also states that a probation violation report was filed in January 2017
      due to McClellan’s offense in this case and that in September 2017 she was sentenced to serve one year on
      home detention consecutive to her sentence in this case.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019                  Page 3 of 7
      McClellan on March 1, 2018, tested positive for methamphetamine, and urine

      collected from her on April 26, 2018, tested positive for amphetamine and

      methamphetamine. McClellan’s counsel elicited testimony from a therapist

      that McClellan was tested a total of thirteen times at the health center where the

      therapist worked and that those were all clean. The therapist testified that

      McClellan completed a substance abuse program and participated in group and

      individual counseling. McClellan’s counsel also elicited testimony from

      McClellan’s supervisor at work regarding her positive work performance. The

      court found that McClellan violated the terms of her probation.


[4]   On August 27, 2018, the court held a dispositional hearing. The prosecutor

      asked the court to order that McClellan serve the balance of her sentence.

      McClellan’s counsel asked that the court not order McClellan to serve time in

      prison and for an order that allowed her to continue the progress she had made.

      The court stated in part:


              [T]here’s no question at least in this Court’s mind, that you
              violated probation as alleged that you failed drug screens on
              those two occasions and we also have on at least one of the
              documents, my recollection, saying there wasn’t any room for a,
              a false positive as was argued. I’ve also reviewed what
              [McClellan’s counsel] has put forward, and also the
              recommendation that’s set forth by probation. You know, [the
              prosecutor is] correct that you, you really have had some
              opportunities here with what happened in Randolph County; and
              I would tell you that while I’m going to have some consequence
              involved here, it’s not a full revocation. What the Court’s going
              to decide to do today is to revoke the remainder of the home
              detention time that you have of 149 days. The Court is also then

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019   Page 4 of 7
              going to revoke 181 days of your previously suspended sentence
              for a revocation of 330 days. While it’s still going to put you, as
              you testified, hugely behind, it’s not as hugely behind as if you
              would have been fully revoked today. I’m going to allow you to
              continue on probation, I’m not going to extend your probation,
              I’m going to allow you to continue on probation because I do
              think that, that probation will be beneficial to you. Again, you’re
              not going to have the same type of thumb on you that home
              detention placed on you, but you’re still going to be required, at
              least the Court is advising probation that you be on the call-in
              program once you’re released, so that we are sure that if you’re
              going to use again, we are going to catch you. Now, you’ve had
              a lot of drug tests that have been negative since the last positive,
              that’s also weighing in the Court’s decision of what I’m doing
              today. And, while it’s not probably what you want, it’s also not
              what [the prosecutor] has requested that I do, but I think based
              upon what I’ve heard this is a, a just way to address the
              probation violation and still attempt to give you some
              opportunity to have some of the benefits of a system that does
              look to try and rehabilitate. So, that’s going to be the order and
              decision of the Court today.


      Transcript Volume III at 105-106.


                                                   Discussion

[5]   The issue is whether the trial court abused its discretion in reinstating a portion

      of McClellan’s previously-suspended sentence. Ind. Code § 35-38-2-3(h)

      provides:


              If the court finds that the person has violated a condition at any
              time before termination of the period, and the petition to revoke
              is filed within the probationary period, the court may impose one
              (1) or more of the following sanctions:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019   Page 5 of 7
                       (1) Continue the person on probation, with or without
                       modifying or enlarging the conditions.

                       (2) Extend the person’s probationary period for not more
                       than one (1) year beyond the original probationary period.

                       (3) Order execution of all or part of the sentence that was
                       suspended at the time of initial sentencing.


[6]   Probation is a matter of grace left to trial court’s discretion, not a right to which

      a criminal defendant is entitled. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.

      2012) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). 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. Id.


[7]   McClellan argues the court abused its discretion in sentencing her, a recovering

      drug addict, to the Department of Correction, instead of fashioning a sanction

      that considers her addiction. She argues that sending a relapsed addict to

      prison is punishing a person for exhibiting symptoms of their disease. She

      asserts that she had two drug screens that were positive for methamphetamine,

      one in March and another in April, but by August she had thirteen clean drug

      screens and was working and going to counseling. She contends the court had

      options short of incarcerating her.


[8]   The State maintains that McClellan was afforded a great deal of leniency but

      quickly squandered the opportunity. It argues that, despite her felony drug

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019   Page 6 of 7
       offenses, she was offered a favorable plea agreement and, less than four months

       after the court sentenced her, used methamphetamine. It also argues that the

       court considered McClellan’s drug addiction when it accepted the plea

       agreement and placed her on probation in the first instance and considered the

       fact McClellan had already been provided substance abuse services when she

       violated the terms of her probation.


[9]    The record reveals that, on November 21, 2017, McClellan was sentenced to

       three years suspended to probation and as a condition of probation placed on

       home detention for one year. On March 1, 2018, and again on April 26, 2018,

       both less than six months after sentencing, McClellan tested positive for

       methamphetamine. In light of the trial court’s comments and the evidence

       before the court, we cannot say that the trial court abused its discretion in

       ordering that McClellan serve a portion of her previously-suspended sentence.


[10]   For the foregoing reasons, we affirm the trial court’s determination.


[11]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2277 | February 28, 2019   Page 7 of 7
