MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Aug 29 2018, 10:52 am

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
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Michael G. Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary Allen Fix,                                       August 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-268
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48D03-1009-FB-422



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-268 | August 29, 2018                   Page 1 of 5
                                      Statement of the Case
[1]   Zachary Allen Fix appeals the sentence imposed by the trial court after he

      admitted to violating the terms of his community corrections placement. We

      affirm.


                                                     Issue
[2]   Fix raises one issue, which we restate as: whether the trial court abused its

      discretion in ordering him to serve the balance of his previously-suspended

      sentence.


                               Facts and Procedural History
[3]   In 2011, Fix pleaded guilty to burglary as a Class B felony and theft as a Class

      D felony. In exchange for his guilty plea, the parties agreed that the executed

      portion of his sentence would be capped at six years. The court accepted the

      plea agreement and sentenced Fix to twenty years, with fourteen years

      suspended.


[4]   Fix was released from prison in 2012 and placed on probation. On October 23,

      2012, the State filed a notice of violation of probation. During a January 7,

      2013 hearing, Fix admitted he violated the terms of his probation by failing to

      pay court costs and by using marijuana. The trial court revoked Fix’s probation

      and ordered him to serve his previously-suspended sentence in the Indiana

      Department of Correction (DOC).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-268 | August 29, 2018   Page 2 of 5
[5]   In 2014, Fix filed a motion to reinstate probation. The court held a hearing and

      denied his petition because he had committed misconduct while in the DOC.

      In April 2015, Fix filed a motion to modify placement. The court denied Fix’s

      motion in June 2015. Fix participated in several programs while at the DOC,

      including purposeful incarceration.


[6]   On October 4, 2016, Fix filed a motion to modify his sentence. The court held

      a hearing and granted the motion, sending Fix to the Madison County

      Community Transition Program. Fix completed the program and was placed

      in Madison County’s Adult Day Reporting Program on March 14, 2017.


[7]   On May 4, 2017, the community corrections program filed a notice of violation,

      alleging Fix had failed to attend two scheduled appointments with his case

      manager. On August 15, 2017, the community corrections program filed a

      second notice of violation, alleging Fix violated the terms of his placement by:

      (1) failing to pay fees; (2) testing positive for methamphetamine; (3) committing

      a new offense, specifically battery on a public service officer, a felony; and (4)

      being incarcerated in the Madison County jail.


[8]   The court held an evidentiary hearing, during which it was revealed that Fix

      had committed battery against two public service officers when they took him

      into custody for failing a drug screen, causing the State to file a new criminal

      case. It was further revealed that Fix had committed another battery during the

      same span of time, against the mother of his child, resulting in yet another

      criminal case.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-268 | August 29, 2018   Page 3 of 5
[9]    The trial court held a hearing, during which Fix admitted that he had used

       methamphetamine and had committed battery as alleged in the notice of

       violation. Based on Fix’s admissions, the court terminated his community

       corrections placement and ordered him to serve the remainder of his previously-

       suspended sentence in the DOC, to be served consecutively to his sentences in

       the battery cases. This appeal followed.


                                    Discussion and Decision
[10]   Fix contends the trial court should not have ordered him to serve the balance of

       his previously-suspended sentence in the DOC, claiming that a term of

       probation would allow him to obtain substance abuse treatment.


[11]   Placement in either probation or a community corrections program is “‘a

       matter of grace and a conditional liberty that is a favor, not a right.’” State v.

       Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (quoting Cox v. State, 706 N.E.2d

       547, 549 (Ind. 1999)). When a probationer violates a term of probation, the

       court may: (1) continue the person on probation, with or without modifying

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

       or part of the previously-suspended sentence. Ind. Code § 35-38-2-3(h) (2015).


[12]   A reviewing court treats a petition to revoke placement in a community

       corrections program the same as a petition to revoke probation. McCauley v.

       State, 22 N.E.3d 743, 746 (Ind. Ct. App. 2014), trans. denied. A trial court’s

       sentencing decisions for probation violations are reviewable using the abuse of

       discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-268 | August 29, 2018   Page 4 of 5
       of discretion occurs where the decision is clearly against the logic and effect of

       the facts and circumstances. Id.


[13]   Fix committed numerous serious offenses while in community corrections,

       including using methamphetamine and committing multiple batteries. This

       was not the first time Fix abused an alternative to incarceration because he used

       marijuana while on probation in 2012. Fix has demonstrated that he will not

       refrain from using controlled substances when not at the DOC. He can seek

       substance abuse treatment while incarcerated. Based on this record, the trial

       court acted well within its discretion in ordering Fix to serve the remainder of

       his previously-suspended sentence at the DOC.


                                                Conclusion
[14]   For the reasons stated above, we affirm the judgment of the trial court.


[15]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-268 | August 29, 2018   Page 5 of 5
