MEMORANDUM DECISION
                                                              May 12 2015, 10:32 am
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
Lawrence D. Newman                                       Gregory F. Zoeller
Newman & Newman, P.C.                                    Attorney General of Indiana
Noblesville, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Tracy Souviner,                                          May 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1409-CR-461
        v.                                               Appeal from the Hamilton County
                                                         Superior Court; The Honorable
                                                         Valorie S. Hahn, Judge Pro
State of Indiana,                                        Tempore;
Appellee-Plaintiff.                                      29D01-1307-FC-5773




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015     Page 1 of 6
[1]   Tracy Lynn Souviner appeals the trial court’s order that she return to

      incarceration following the revocation of her probation.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In October 2013, Souviner pled guilty to Class C felony forgery.1 The court

      imposed a four-year sentence, ordered credit for the time she had already

      served, and suspended the remainder of her sentence. The court placed

      Souviner on probation for two years. In addition to all standard conditions of

      probation Souviner was required to complete a substance abuse evaluation and

      comply with any treatment recommended based thereon.


[4]   On December 18, 2013, State filed a notice of probation violation alleging

      Souviner had violated probation on December 5, 2013, by submitting a urine

      sample that tested positive for a cocaine metabolite and by being dishonest with

      her probation officer about her use of illegal drugs. In May 2014, Souviner

      failed to appear for the fact-finding hearing regarding her alleged probation

      violation, so the court issued a warrant for her arrest.


[5]   On July 15, the State filed a second notice of probation violation which alleged

      that, on February 28, 2014, Souviner again was dishonest with her probation

      officer about her use of illegal drugs and submitted a urine sample that tested




      1
          Ind. Code § 35-43-4-2(b)(1) (2009).


      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015   Page 2 of 6
      positive for a cocaine metabolite and for opiates. In addition, the notice alleged

      Souvenir had failed to enroll in intensive outpatient counseling as required

      following her substance abuse evaluation and she had admitted to her probation

      officer that she consumed “6 or 7 beers” on July 4, 2014. (App. at 39.)


[6]   On August 28, 2014, Souviner appeared before the court and admitted the

      alleged violations of probation. On September 11, 2014, the court found, based

      on Souviner’s stipulation, that she is a “chemically addicted offender.” (Id. at 46

      (emphasis in original).) The court revoked probation, ordered Souviner

      incarcerated in the Department of Correction’s Purposeful Incarceration

      program, and noted it would “consider a sentence modification should the

      Defendant successfully complete an Indiana Department of Correction

      Therapeutic Community.” (Id. (emphases in original).)


                                     Discussion and Decision
[7]   As our Indiana Supreme Court explained:

              Probation is a matter of grace left to trial court discretion, not a right to
              which a criminal defendant is entitled. The trial court determines the
              conditions of probation and may revoke probation if the conditions are
              violated. Once a trial court has exercised its grace by ordering
              probation rather than incarceration, the judge should have
              considerable leeway in deciding how to proceed. If this discretion
              were not afforded to trial courts and sentences were scrutinized too
              severely on appeal, trial judges might be less inclined to order
              probation to future defendants.
      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).




      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015   Page 3 of 6
       Accordingly, we review the sanction imposed for a probation violation only for

       an abuse of discretion, which occurs “where the decision is clearly against the

       logic and effect of the facts and circumstances.” Id.


[8]    Souviner admitted violating probation, and “proof 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. After finding a defendant violated probation, the trial court may

       continue the person on probation, extend the probation, or order executed all or

       part of a sentence that was suspended at initial sentencing. Alford v. State, 965

       N.E.2d 133, 135 (Ind. Ct. App. 2012), trans. denied.


[9]    Souviner argues the court abused its discretion in ordering incarceration

       because she “had been approved for placement in the Hamilton County

       Community Corrections work release and electronic monitoring programs, but

       was not given the opportunity to complete that programming.” (Br. of

       Appellant at 10.) She alleges the court denied her the opportunity to “serve a

       portion of her sentence through community corrections only due to the fact that

       she was pregnant.” (Id. at 12.) In support of that allegation, Souviner notes, at

       the disposition hearing, the court said she was inappropriate for work release

       due to her “condition.” (Id., citing Tr. at 25.)


[10]   What the court said was:

               The Court has reviewed the file and after hearing the arguments of the
               State and reviewing the evidence that has been submitted, the Court is
               going to find that at this time the Defendant’s Probation should be

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015   Page 4 of 6
               revoked and that the Defendant should be ordered to serve the
               remainder of the balance of her term at the Indiana Department of
               Correction under the Purposeful Incarceration in order that, Ma’am,
               you may be able to get the help that you are going to need. I feel that
               Electronic Home Monitoring is not going to be a good option being
               that you have not participated in any counseling or drug treatment
               while you were on Probation. You did not . . . make your
               appointments for Probation. I think everyone agrees that Work
               Release is not a viable option given your condition at this time. The
               Court will include the language in the Court Order that you are to be
               in-house in the Purposeful Incarceration and that you will be eligible
               for a modification at the end of successfully completing the program.
       (Tr. at 24-25.)


[11]   In light of the discussion the court was having regarding Souviner’s need for

       counseling and the Purposeful Incarceration program, it seems more likely the

       “condition” to which the court was referring was Souviner’s admitted status as

       a “chemically addicted offender.” (App. at 46 (emphasis in original).) This

       inference is also supported by the court’s statement, and inclusion in its

       revocation order, that sentence modification could be requested when Souviner

       successfully completed a therapeutic community while incarcerated. In light of

       Souviner’s multiple probation violations and her unwillingness to complete

       treatment while on probation, the court was well within its discretion to order

       her to be incarcerated while completing a drug treatment program. See Prewitt,

       878 N.E.2d at 188 (finding no abuse of discretion in court’s order for defendant

       to be incarcerated and receive treatment, given probation violations, criminal

       history, and unwillingness to complete halfway house program). Accordingly,

       we affirm.



       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015   Page 5 of 6
[12]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015   Page 6 of 6
