      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                                Oct 10 2019, 6:37 am

      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jacob A. Ahler                                           Curtis T. Hill, Jr.
      Law Office of Riley & Ahler P.C.                         Attorney General of Indiana
      Rensselaer, Indiana
                                                               Tiffany A. McCoy
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael Laroy McCullough, Jr.                            October 10, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1005
              v.                                               Appeal from the
                                                               Jasper Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Russell D. Bailey, Judge
                                                               Trial Court Cause No.
                                                               37D01-0804-FB-115



      Kirsch, Judge.


[1]   Michael Laroy McCullough, Jr. (“McCullough”) appeals the trial court’s

      revocation of his probation and imposition of his previously suspended


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019                 Page 1 of 13
      sentence. McCullough raises one issue, which we restate as whether the trial

      court abused its discretion when it determined he violated his probation and

      ordered him to serve his previously suspended six-year sentence.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On April 21, 2008, McCullough, who was sixteen years old at the time, entered

      the Petro 75 Shopping Center in Jasper County, Indiana and demanded money

      while armed with a revolver and a sawed-off shotgun. Appellee’s App. Vol. II at

      2. Two days later, the State charged McCullough with attempted armed

      robbery, a Class B felony; conspiracy to commit armed robbery, a Class B

      felony; dealing in a sawed-off shotgun, a Class D felony; and carrying a

      handgun without a license, a Class A misdemeanor. Id. at 2-5. On November

      19, 2008, McCullough pleaded guilty to Class B felony conspiracy to commit

      armed robbery,1 and the State dismissed the remaining charges. Id. at 6-7.

      Pursuant to his plea agreement, the trial court sentenced McCullough to an

      aggregate sentence of twelve years, with six years ordered executed in the

      Indiana Department of Correction (“DOC”) and six years suspended to

      probation. Id. at 6-9.




      1
          See Ind. Code §§ 35-42-5-1 (West 2008), 35-41-5-2 (West 2008).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 2 of 13
[4]   After serving the executed portion of his sentence, McCullough was released

      from DOC and started probation in Jasper County on November 4, 2014.

      Appellant’s App. Vol. 2 at 19. At that time, McCullough signed the Conditions of

      Probation, indicating that he understood and agreed to comply with the terms

      of probation. Id. at 22. Those terms included, in pertinent part, that

      McCullough: (1) not commit any criminal offense; (2) not possess or consume

      any illegal drugs or controlled substances; (3) not buy, possess, or consume

      alcohol; (4) submit to drug screens to determine alcohol or drug use; (5) work

      faithfully at suitable employment or diligently look for a job; and (6) pay the

      initial probation fee of $50 plus $15 per month. Id. at 19-22.


[5]   On August 2, 2017, the State filed its first petition to revoke McCullough’s

      probation, alleging that McCullough violated the terms of probation by: (1)

      testing positive for marijuana on November 26, 2016; (2) failing to report to

      probation for a drug screen on March 1, 2017; (3) testing positive for marijuana

      on March 9, 2017; and (4) being arrested and charged with Class A

      misdemeanor battery on July 23, 2017. Id. at 17. The trial court held a hearing

      on February 7, 2018 and, after a short recess, the parties agreed that

      McCullough would admit to the first three allegations but “return to probation

      with same release date of 11/4/2020.” Appellant’s App. Vol. 2 at 9. The trial

      court accepted the parties’ agreement but added the condition that McCullough

      obtain a substance abuse evaluation within six months and complete all

      treatment recommendations before the end of probation. Id. at 9.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 3 of 13
[6]   On February 23, 2018, the trial court granted McCullough’s request to transfer

      his probation to Lake County. Around that time, McCullough informed Lake

      County Probation “that he had an appointment scheduled with Edgewater,” a

      Lake County service provider, to address substance abuse issues. Tr. Vol. II at

      15. Marcos Zuazua (“Officer Zuazua”), a Lake County Probation Officer,

      advised McCullough that he would need to provide documentation of his

      participation in the Edgewater program. Id.


[7]   On January 7, 2019, the State filed its second petition to revoke probation,

      alleging that McCullough violated his probation by: (1) testing positive for

      cocaine on May 9, 2018; (2) failing to obtain gainful employment; (3) failing to

      complete substance abuse treatment within six-months of February 7, 2018; (4)

      failing to report for mandatory drug screens on April 27, 2018, August 17, 2018,

      September 3, 2018, November 27, 2018, and December 10, 2018; and (5) failing

      to make any payments toward his probation transfer fees in the amount of

      $2,475. Appellant’s App. Vol. 2 at 18.


[8]   During the April 3, 2019 fact-finding hearing, the trial court admitted, over

      McCullough’s hearsay objection, a drug screen report showing that

      McCullough had tested positive for cocaine on May 9, 2018. Tr. Vol. II at 13;

      Appellant’s App. Vol. 2 at 26. The State then questioned McCullough about the

      other probation violation allegations. The trial court concluded that

      McCullough had violated his probation and sentenced him to serve his

      previously suspended sentence. McCullough now appeals.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 4 of 13
                                      Discussion and Decision
[9]    McCullough argues that the trial court abused its discretion when it concluded

       he violated his probation and ordered him to serve his previously suspended six-

       year sentence.


               “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. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.”


       Montgomery v. State, 58 N.E.3d 279, 280-81 (Ind. Ct. App. 2016) (quoting Prewitt

       v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted)).


[10]   “Probation revocation is a two-step process.” Sparks v. State, 983 N.E.2d 221,

       224 (Ind. Ct. App. 2013). “First, the court must make a factual determination

       that a violation of a condition of probation has taken place.” Id. “Second, if a

       violation is proven, the trial court must determine whether the violation

       warrants revocation of the probation.” Id. When there is proof of a single

       violation of the conditions of probation, the court may revoke probation. Beeler

       v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied. After finding a
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 5 of 13
       violation, the trial court may impose one or more of the following sanctions:

       (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 year beyond the original probationary period; and (3) order execution of all

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

       Code § 35-38-2-3(h).


[11]   “[A] probation revocation proceeding is civil in nature, and the State must

       prove its allegations by a preponderance of the evidence.” Pierce v. State, 44

       N.E.3d 752, 755 (Ind. Ct. App. 2015). “A probationer faced with a petition to

       revoke his probation is not entitled to the full panoply of rights he enjoyed

       before the conviction.” Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App.

       2011). For example, the rules of evidence do not apply in a revocation

       proceeding. See Ind. Evidence Rule 101(d)(2) (providing that Indiana Rules of

       Evidence, other than those with respect to privilege, do not apply in probation

       proceedings). To protect against evidence being admitted “willy-nilly in a

       probation revocation hearing,” our Supreme Court requires that hearsay should

       satisfy the “substantial trustworthiness” test. Smith v. State, 971 N.E.2d 86, 90

       (Ind. 2012) (citing Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007)). “‘[I]deally

       [the trial court should explain] on the record why the hearsay [is] reliable and

       why that reliability [is] substantial enough to supply good cause for not

       producing . . . live witnesses.’” Reyes, 868 N.E.2d at 442 (quoting United States

       v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 6 of 13
[12]   In its petition to revoke probation, the State alleged that McCullough violated

       his probation by: (1) testing positive for cocaine on May 9, 2018; (2) failing to

       obtain gainful employment; (3) failing to complete substance abuse treatment

       within six months after February 7, 2018; (4) failing to report for mandatory

       drug screens on April 27, 2018, August 17, 2018, September 3, 2018, November

       27, 2018, and December 10, 2018; and (5) failing to make any payments toward

       his probation transfer fees in the amount of $2,475. 2 Appellant’s App. Vol. 2 at

       18. During the fact-finding hearing on that petition, McCullough’s counsel

       objected to the admission of McCullough’s drug screen lab report, which was

       positive for cocaine. Defense counsel argued, “There is no business records,

       affidavit included with this. Um, I don’t—I don’t know if [the State] plans on

       calling the actual ah, someone from Forensic Solutions but, Your Honor, the

       document itself is hearsay.” Tr. Vol. II at 13. McCullough contends that the

       trial court abused its discretion when it admitted this hearsay report into

       evidence because it was not trustworthy.


[13]   We need not reach the question of whether McCullough’s drug screen was

       inadmissible hearsay. Assuming without deciding that it was error to admit the




       2
         Our Supreme Court has said, “As provided by Indiana’s statutory scheme, probation may be revoked for
       violation of a probation condition but, for violations of financial conditions, only if the probationer
       recklessly, knowingly, or intentionally fails to pay.” Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010).
       Because there is no evidence that McCullough recklessly, knowingly, or intentionally failed to pay these fees,
       his probation revocation cannot be based on any violations caused by his financial condition. See Clark v.
       State, 958 N.E.2d 488, 491 n.3 (Ind. Ct. App. 2011) (probation revocation cannot properly be based on
       financial conditions unless probationer’s failure to pay is reckless, knowing, or intentional). As such, we do
       not consider McCullough’s non-payment of fees as a basis for our determination that the trial court did not
       abuse its discretion when it revoked McCullough’s probation.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019                  Page 7 of 13
       drug screen, such error is harmless when there is other evidence that supports

       the trial court’s conclusion that McCullough violated his probation. See Smith v.

       State, 114 N.E.3d 540, 543 (Ind. Ct. App. 2018) (“erroneous admission of

       hearsay testimony does not require reversal unless it prejudices the defendant’s

       substantial rights”). We find the following evidence supports the trial court’s

       decision.


[14]   McCullough signed the Conditions of Probation, acknowledging that he had

       read and understood the terms of probation. Appellant’s App. Vol. 2 at 19-22.

       Two of the probation conditions related to potential drug use. One condition

       prohibited McCullough from consuming any illegal drug or controlled

       substance. Id. at 19. A second provision required McCullough to “submit to

       blood, breath, chemical, or urine test, if required to do so by a Probation

       Officer.” Id. at 20. During the fact-finding hearing, the State and McCullough

       engaged in the following exchange regarding the prohibition on the

       consumption of drugs:


               Q. Mr. McCullough, when you were placed on probation, you
               read, signed, and understood the terms and conditions of
               probation, correct?


               A. Yes.


               Q. You understood that those terms and conditions include you
               were not to ah, partake of any illicit substances?


               A. Yes.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 8 of 13
               Q. And yet, on May 9th of 2018, you tested positive for cocaine
               on the drug screen; is that correct?


               A. Yes.


               Q. And that’s a violation of your probation?


               A. Yes.


       Tr. Vol. 2 at 25. Even without the drug screen, there was sufficient evidence for

       the trial court to find that McCullough had consumed cocaine and knew it was

       a violation of his probation.


[15]   Regarding the second condition of reporting for drug screens, Officer Zuazua

       testified that everyone “on probation in Lake County has to call the random

       drug testing hotline.” Id. at 13. Each probationer is given an “ID number” that

       they have to use when they call the drug testing hotline.” Id. Officer Zuazua

       testified, “Since [McCullough] is on probation with us, everybody in Lake

       County . . . has to call in Monday through Friday ah, to see if they have to be

       randomly drug tested.” Id. at 14. Officer Zuazua stated that McCullough failed

       to report for mandatory drug screens on April 27, 2018, August 17, 2018,

       September 3, 2018, November 27, 2018, and December 10, 2018. Id. During

       the fact-finding hearing, McCullough conceded that he did not show up for

       those tests but argued that his absence occurred “not knowingly” because he did

       not have a phone he could use to call to see if needed to appear for the random

       drug screen. Id. at 26. The State then asked twice whether McCullough had, in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 9 of 13
       fact, called in. McCullough said no. Id. While McCullough’s admissions that

       he tested positive for cocaine and that he failed to appear for required drug

       screens on five separate occasions are sufficient to support the revocation of

       McCullough’s probation, the State proved additional violations.


[16]   As part of probation, McCullough agreed to “work faithfully at suitable

       employment or faithfully pursue a course of study or vocational training that

       will equip you for suitable employment. Further, if you are not employed you

       must diligently seek employment.” Appellant’s App. Vol. 2 at 20. Responding to

       the State’s question regarding his employment, McCullough admitted that he

       had not been working. Tr. Vol. II at 24. McCullough tried to explain that his

       lack of work was because he was “going through disability.” Id. Yet,

       responding to further questions, McCullough admitted that he had not been

       approved for disability. Id. This was another violation of McCullough’s

       probation.


[17]   McCullough also agreed as part of probation that he would obtain a substance

       abuse evaluation within six months after February 7, 2018 and complete all

       treatment recommendations prior to the end of probation.3 Appellant’s App. Vol.

       2 at 9. McCullough testified that he had completed eight of the twelve




       3
         The trial court added this condition in connection with the State’s first petition to revoke McCullough’s
       probation. Tr. Vol. II at 8. At that time, the parties agreed that McCullough would admit that he committed
       three probation violations and be returned to the same term of probation. Tr. Vol. II at 32. The trial court,
       however, added the additional condition that McCullough obtain substance abuse treatment within six
       months of the hearing. Id. at 8.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019                Page 10 of 13
       substance abuse treatment sessions at Edgewater. Tr. Vol. II at 25, 27. Officer

       Zuazua had informed McCullough that he would have to supply

       documentation of his participation so that Lake County could share that

       information with Jasper County Probation. Id. at 15. Officer Zuazua testified

       that probation received no notification regarding McCullough’s participation,

       and McCullough testified that he had no documentation reflecting his

       participation. Id. at 20, 27. The fact-finding hearing was held on April 3, 2019,

       a date that was more than a year after McCullough had been instructed to

       obtain substance abuse treatment, yet McCullough had no documentation that

       he had obtained that treatment.


[18]   When there is proof of a single violation of the conditions of probation, the

       court may revoke probation. Beeler, 959 N.E.2d at 830. Here, evidence was

       presented to establish that McCullough violated four conditions of probation.

       The trial court did not abuse its discretion when it found that McCullough had

       violated his probation.


[19]   Addressing the imposed sanction, McCullough argues that he was just sixteen

       years old when he committed the underlying crime, that he served three years

       of probation without a violation, and that he should have been transferred to

       Marion County Probation where he had family support and could obtain

       counseling for his drug habit. Appellant’s Br. at 6. As such, McCullough

       contends that the trial court abused its discretion when it ordered him to serve

       the previously suspended six-year sentence. We disagree.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 11 of 13
[20]   After serving the executed portion of his sentence, McCullough was released

       from DOC and started probation in Jasper County on November 4, 2014.

       While the State filed the first petition for revocation almost three years later, it

       alleged, and McCullough admitted to, having tested positive for marijuana on

       November 26, 2016, failing to report to probation for a drug screen on March 1,

       2017, and testing positive for marijuana on March 9, 2017. Appellant’s App. Vol.

       2 at 17. In other words, McCullough admitted to having committed three

       violations within two and a half years of being released from DOC. The trial

       court was lenient when it imposed the sanction for those three admitted

       violations because it returned McCullough to probation on February 7, 2018,

       with the “same release date of 11/4/2020.” Appellant’s App. Vol. 2 at 9. The

       trial court, however, recognized that drug abuse was an issue for McCullough

       and imposed the new condition that McCullough obtain a drug abuse

       assessment within six months. Id.


[21]   Thereafter, McCullough committed four probation violations within the first six

       months following his February 7, 2018 return to probation. McCullough’s first

       violation was his failure to appear for a mandatory drug screen on April 27,

       2018, and his second violation was his admitted consumption of cocaine on

       May 9, 2018. Tr. Vol. II at 25, 26. McCullough also missed the six-month

       deadline for obtaining the ordered drug assessment and failed to appear for a

       required drug screen on August 17, 2018.


[22]   During sentencing, the trial court recognized that McCullough had committed

       the underlying crime when he was 16. Tr. Vol. II at 36. Noting that it was good

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 12 of 13
       that McCullough had “taken ownership of that,” the trial court said that the

       issue before the trial court pertained to McCullough’s violation of probation

       and not the underlying offense. Id. The trial court asserted that a suspended

       sentence “comes [with] certain obligations and responsibilities,” and that

       McCullough had not met those responsibilities. Id. Stating that McCullough

       “would not qualify for Jasper County Community Corrections,” the trial court

       ordered McCullough to serve the “balance of [his] suspended sentence.” Id. at

       36-37. Based on this evidence, we cannot say that the trial court abused its

       discretion when it terminated McCullough’s probation and ordered him to

       serve balance of his previously suspended sentence executed.


[23]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1005 | October 10, 2019   Page 13 of 13
