MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Mar 20 2018, 11:06 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
Robert J. Hardy                                          Curtis T. Hill, Jr.
Auburn, Indiana                                          Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachariah Holden,                                        March 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         57A05-1708-CR-2019
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         57C01-0802-FB-5



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018             Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Zachariah Holden (Holden), appeals the trial court’s

      revocation of his previously suspended sentence.


[2]   We affirm.


                                                   ISSUE
[3]   Holden presents us with one issue on appeal, which we restate as: Whether the

      trial court abused its discretion in revoking the entirety of Holden’s previously

      suspended sentence following his admission to several violations of the

      conditions of his probation.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 13, 2008, the State filed an Information, charging Holden with

      armed robbery, a Class B felony, and as an habitual offender. Following a

      three-day jury trial, Holden was found guilty as charged. On February 29,

      2009, the trial court sentenced Holden to fifteen years on the robbery

      conviction, enhanced by twenty years on the habitual offender adjudication,

      with five years suspended to probation. On September 2, 2016, Holden filed a

      motion to modify his sentence. Granting Holden’s motion, effective December

      1, 2016, the trial court placed him on probation to serve the remainder of his

      sentence. Among Holden’s conditions for probation were the customary

      requirements to obey the law, abstain from using, possessing, or consuming

      alcohol, or any other controlled substances unless he had a valid and current

      prescription, and to submit to all drug and alcohol tests.
      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 2 of 7
[5]   On February 28, 2017, Holden tested positive for amphetamine,

      methamphetamine, and cocaine. On March 9, 2017, the State filed an

      Information, charging Holden with false informing, a Class B misdemeanor.

      Based on both incidents, the State filed a first report of probation violation on

      March 20, 2017, alleging that Holden violated his probation by committing a

      new crime and by using illegal drugs. An initial hearing was held on April 27,

      2017. Before any other hearing could be conducted, the State filed a second

      violation report on May 16, 2017, claiming that Holden’s probation officer had

      noticed a device in Holden’s possession on May 15, 2017, when Holden was

      required to submit to a drug screen. Holden refused to comply and surrender

      the device. Upon questioning, he admitted to having brought someone else’s

      urine to the test and to try to submit it as his own. Accordingly, the State

      charged Holden with possession of a device designed to interfere with drug or

      alcohol screening tests, a Class B misdemeanor. Holden further tested positive

      for amphetamine and methamphetamine on April 12, 2017, and April 20, 2017.


[6]   After the second probation violation was filed, Holden was arrested and held

      without bond. While Holden was incarcerated, his father passed away. On

      July 17, 2017, the trial court granted Holden’s request for a furlough to attend

      the funeral and released him for a few hours on July 20, 2017. At some point

      during this furlough, Holden arranged to buy drugs and brought them back to

      jail.


[7]   Although Holden attempted to gain admittance into the Noble County Drug

      Court Program, on August 4, 2017, the trial court was notified that Holden’s

      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 3 of 7
      request was denied due to his prior conviction for a violent felony. On August

      17, 2017, Holden admitted to violating his probation by testing positive for

      methamphetamine several times, using drugs, trying to mask his drug use by

      submitting a false urine sample, and committing new criminal offenses. As part

      of the plea agreement reached to dispose of these probation violations and

      Holden’s two pending misdemeanor charges, the State agreed to forego filing

      any new charges, including a habitual offender enhancement, or any charges

      related to his act of bringing drugs into the jail. At the close of the hearing, the

      trial court ordered the entirety of Holden’s remaining sentence to be served at

      the Department of Correction.


[8]   Holden now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[9]   Holden contends that the trial court abused its discretion by imposing the

      entirety of his previously suspended sentence. “Probation is a matter of grace

      left to the trial court’s discretion, not a right to which a criminal defendant is

      entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the

      discretion of the trial court to determine probation conditions and to revoke

      probation if these conditions are violated. Id. We review the appeal from a

      trial court probation determination and sanction for an abuse of discretion. See

      id. An abuse of discretion occurs when the decision is clearly against the logic

      and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110, 1112




      Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 4 of 7
       (Ind. 2012). A probation hearing is civil in nature and the State need only

       prove the alleged violation by a preponderance of the evidence. Id


[10]   Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition has actually occurred.

       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a

       violation is proven, then the trial court must determine if the violation warrants

       revocation of the probation. Id. However, where, as here, a probationer admits

       to the violations, the court can proceed immediately to the second step of the

       inquiry and determine whether the violation warrants revocation. Id. In

       determining whether the violation warrants revocation, the probationer must be

       given an opportunity to present evidence that explains and mitigates his

       violation. See id.


[11]   In support of his argument that the trial court abused its discretion, Holden

       posits that the trial court considered evidence outside the record in revoking his

       sentence. Specifically, Holden maintains that the trial court based its decision

       on the claim that he brought drugs into the jail after returning from his

       furlough—an allegation he did not admit to.


[12]   A review of the transcript reveals that the information that Holden brought

       drugs into the jail was not the basis for either the revocation or the trial court’s

       imposition of the sanction. Rather, the trial court’s reference to Holden’s

       conduct was in response to Holden thanking the trial court for the ability to

       attend his father’s funeral:


       Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 5 of 7
               Well I’m glad that you got to go bury your father, unfortunately
               due to your actions that’s probably something that I’m not going
               to allow anybody else to do in the future because of your
               conduct. And other people are going to have mothers and
               fathers die and not be able to be there at their funeral because of
               what you did, because I don’t want to see drugs coming back into
               the jail.


       (Transcript p. 38). The trial then continued its statement by sentencing Holden

       for the new crimes committed. Expressing a concern about the seriousness of

       the underlying robbery conviction and the habitual offender adjudication, as

       well as the fact that the original sentence was modified and Holden was

       released early, the trial court ordered his probation revoked and the balance of

       the suspended sentence served.


[13]   Furthermore, based on Holden’s probation violations, we cannot conclude that

       the trial court abused its discretion in imposing the entire previously suspended

       sentence. Through the modification of Holden’s sentence of the enhanced

       robbery conviction, the trial court awarded him a new opportunity. However,

       instead of availing himself of that chance, Holden committed two new

       misdemeanor offenses and tested positive for methamphetamine three times

       during the less than six months he served on probation. Accordingly, the trial

       court could reasonably conclude that probation was not an effective tool to

       moderate Holden’s behavior and ensure his compliance with the law.




       Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 6 of 7
                                             CONCLUSION
[14]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in sentencing Holden to the remainder of his previously suspended sentence.


[15]   Affirmed.


[16]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 57A05-1708-CR-2019 | March 20, 2018   Page 7 of 7
