      MEMORANDUM DECISION                                                              FILED
                                                                                 Sep 27 2017, 10:41 am
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            CLERK
                                                                                   Indiana Supreme Court
      regarded as precedent or cited before any                                       Court of Appeals
                                                                                        and Tax Court

      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
      Kay A. Beehler                                           Curtis T. Hill, Jr.
      Terre Haute, Indiana                                     Attorney General of Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jhontay L. Whitesides,                                   September 27, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               84A05-1703-CR-516
              v.                                               Appeal from the Vigo Superior
                                                               Court
      State of Indiana,                                        The Honorable John T. Roach,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               84D01-1307-FD-2084
                                                               84D01-1508-F3-2017



      Mathias, Judge.


[1]   Jhontay Whitesides (“Whitesides”) admitted to several probation violations in

      Vigo Superior Court. As a result, the trial court revoked his direct placement

      Court of Appeals of Indiana | Memorandum Decision 84A05-1703-CR-516 | September 27, 2017             Page 1 of 6
      and probation. In this appeal, Whitesides claims that the trial court abused its

      discretion by ignoring mitigation evidence and by ordering him to serve seven

      years of his previously suspended sentence in the Department of Correction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On August 26, 2015, Whitesides was charged with Level 3 felony armed

      robbery and Level 3 felony criminal confinement. Whitesides pleaded guilty,

      and on September 27, 2016, he was sentenced to ten years, with six years

      executed in Community Corrections on work release and four years suspended

      to probation.1


[4]   Between October 2016 and January 2017, Whitesides violated the conditions of

      his direct placement and probation several times. He committed an escape

      violation because his whereabouts were unknown for over two hours. He was

      found in possession of or using tobacco on three occasions. He tested positive

      for alcohol in one incident, and in another, he was fired from his job for

      consuming alcohol to the point where he was hospitalized. He was cited for a

      punctuality and attendance violation as well as for refusing to follow an order.

      Additionally, he was arrested and removed from work release for possessing a




      1
       In a March 30, 2017, unpublished decision, we held that the trial court did not abuse its discretion when
      imposing Whitesides’s sentence. Whitesides v. State, No. 84A01-1610-CR-2424, 2017 WL 1179627, at *3 (Ind.
      Ct. App. Mar. 30, 2017).

      Court of Appeals of Indiana | Memorandum Decision 84A05-1703-CR-516 | September 27, 2017       Page 2 of 6
      synthetic drug. Due to these infractions, the State filed a Petition to Revoke

      Direct Placement and/or Probation (“the Petition”) on January 17, 2017.


[5]   On February 7, 2017, a hearing was held on the Petition. During the hearing,

      Whitesides admitted to all of the facts and violations included in the Petition.

      After hearing evidence from both sides, the trial court revoked Whitesides’s

      direct placement and probation. The court explained, “your history is littered

      with probation violations. I mean you just, everything we’ve try [sic] you don’t

      do. You haven’t given me any options to work with.” Tr. p. 18. As a result,

      Whitesides was ordered to serve seven years of his original sentence in the

      Indiana Department of Correction2 with three years suspended to formal

      probation. Whitesides now appeals.


                                      Discussion and Decision
[6]   Whitesides presents two issues for our review, which we restate as the single

      issue of whether the trial court abused its discretion when it ordered him to

      serve seven years in the Department of Correction for his violations of work

      release and probation.


[7]   We review a trial court’s decision to revoke probation and a trial court’s

      sentencing decision in a probation revocation proceeding for an abuse of



      2
        The court ordered purposeful incarceration and recommended that Whitesides be placed in the PLUS
      (Purposeful Living Units Served) program. Additionally, the trial court informed Whitesides that he could
      petition the court for modification after completing the PLUS program and that it would “consider you [sic]
      place in either Community Corrections or back to probation depending on what kind of record you give me
      on the motion to modify.” Tr. p. 18.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1703-CR-516 | September 27, 2017         Page 3 of 6
      discretion. Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). An abuse

      of discretion occurs when the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it. Berry v. State, 904 N.E.2d

      365, 366 (Ind. Ct. App. 2009).


[8]   To revoke probation, the trial court must make two determinations under

      Indiana Code section 35-38-2-3. First, the court must find that a violation has

      occurred by a preponderance of the evidence. I.C. § 35-38-2-3(f). Second, if this

      threshold is met, the trial court has three options: (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, or (3) order execution of all or part of the sentence that

      was suspended at the time of initial sentencing. I.C. § 35-38-2-3(h).


[9]   Here, the court did not need to find that the allegations were proven by a

      preponderance of the evidence, because Whitesides admitted to all of them at

      his hearing.3 Whitesides’s primary argument is that “the trial court abused it’s

      [sic] discretion in sentencing him to incarceration, rather than allowing a

      sentence which would [e]nsure treatment.”4 Appellant’s Br. at 10. We disagree.




      3
       The State indicated eleven violations between October 25, 2016, and January 17, 2017. Appellant’s App.
      pp. 30–31.
      4
        Whitesides also argues that the trial court abused its discretion by failing to acknowledge “the mitigating
      factor of Mr. Whitesides’[s] addiction.” Appellant’s Br. at 9. We first note that the trial court did
      acknowledge his addiction when it recommended he be placed in the PLUS Program while incarcerated.
      However, even if it had not, our court has consistently held “that trial courts are not required to balance

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[10]   We first note, that after Whitesides admitted to various probation violations, it

       was well within the trial court’s discretion to revoke his direct placement and

       probation and order him to execute a portion of his suspended sentence. See

       I.C. § 35-38-2-3(h)(3); Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007),

       (holding a single violation is sufficient to revoke probation), trans. denied.

       Further, despite Whitesides’s contrary assertions, he has been afforded the

       opportunity for treatment over the past several years by the court. In 2012,

       Whitesides was ordered to complete the A&D program. In 2016, MATRIX and

       other substance abuse programming was ordered as part of the probation

       underlying this case. And here, the trial court ordered purposeful incarceration

       in the PLUS program, and made it clear to Whitesides that it would consider

       modifying his sentence after completion of the program. Tr. p. 18.


[11]   Additionally, at the revocation hearing, Whitesides’s case manager was asked,

       “is there anything that you could do to take him back or any program he could

       be placed in through Community Corrections to get the help that he needs with

       substance abuse problems?” Tr. p. 9. He responded, “Our recommendation is

       that he’s not appropriate for either of our programs.” Id. The court then

       explained to Whitesides, “I mean you just, everything we’ve try [sic] you don’t

       do. You haven’t give me any options to work with.” Id. at 18; see Jones, 838

       N.E.2d at 1148 (explaining that this court has stated on numerous occasions




       aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding.”
       Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 84A05-1703-CR-516 | September 27, 2017       Page 5 of 6
       that a defendant is not entitled to serve a sentence in a probation program, but

       rather a probationary placement is a “matter of grace,” and “not a right”)

       (citations omitted).


[12]   Four probation violations had been filed against Whitesides prior to the current

       offense, and each time the trial court permitted him to continue on probation

       with modified conditions. After this fifth filing, the trial court’s order that

       Whitesides serve seven years of his original sentence in the Department of

       Correction is not an abuse of discretion. See, e.g., Sandlin v. State, 823 N.E.2d

       1197, 1198 (Ind. 2005) (affirming the trial court’s decision to order the

       defendant to serve his entire four-year suspended sentence for violating

       probation); Cox v. State, 850 N.E.2d 485, 491 (Ind. Ct. App. 2006) (holding that

       the trial court did not abuse its discretion by ordering the defendant to serve his

       entire suspended sentence after finding two violations); Sanders v. State, 825

       N.E.2d 952, 958 (Ind. Ct. App. 2005) (ordering defendant to serve the entirety

       of her suspended sentence where she admitted to probation violations was not

       an abuse of discretion), trans. denied.


                                                 Conclusion
[13]   For the foregoing reasons, we affirm the trial court’s revocation of Whitesides’s

       probation and the sanctions it imposed.


[14]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.


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