MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Jan 31 2019, 8:35 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jody A. Bush,                                            January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1908
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1609-F6-2453
                                                         84D01-1701-F6-0327



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019                  Page 1 of 4
[1]   Jody Bush appeals the sanction imposed after the trial court revoked his

      probation, arguing that it was erroneous to order that he serve the balance of his

      previously suspended sentence in the Department of Correction (DOC).

      Finding no error, we affirm.


[2]   On July 3, 2017, Bush pleaded guilty to Level 6 felony fraud under one cause

      and to Level 6 felony possession of marijuana under another cause. On the

      same day, the trial court sentenced Bush to an aggregate term of four years,

      fully suspended to probation.


[3]   In less than two months, the probation department filed a notice of probation

      violation after Bush twice tested positive for amphetamines, methamphetamine,

      and THC; failed to comply with his call-in protocol; failed to take six drug

      screens; failed to report for a substance abuse assessment; and failed to comply

      with the Department of Child Services (DCS), which was involved with Bush

      and his family. Before the violation hearing, the probation department filed an

      amended notice of probation violation, indicating that Bush had failed five

      additional drug screens. The trial court found that Bush had violated probation

      but ordered that he continue with probation.


[4]   Nine days later, the probation department filed second and third notices of

      violation, reporting seven additional failed drug screens. The trial court ordered

      Bush to continue with probation so that he could schedule a foot surgery. He

      did not schedule the surgery. Within a month, the probation department filed a

      fourth notice of violation, reporting that Bush had failed to report to probation


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019   Page 2 of 4
      three times, failed to report for a drug screen, and tested positive for

      amphetamine and methamphetamine.


[5]   At the hearing on the fourth violation notice, Bush’s probation officer testified

      that he did not believe that the local addiction center would provide Bush with

      the needed level of assistance. He also testified that based on Bush’s lack of

      compliance over seven months of probation, he did not believe that Bush could

      be successful on probation. The trial court revoked probation and ordered that

      Bush serve the balance of his previously suspended sentence. The trial court

      recommended placement in the Purposeful Incarceration program and agreed

      to consider a modification upon successful treatment and participation. Bush

      now appeals.


[6]   Probation is a matter of grace left to trial court discretion rather than a right to

      which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

      The trial court determines the conditions of probation and if the conditions are

      violated, the trial court may revoke probation. Id. The judge has “considerable

      leeway in deciding how to proceed,” and we will reverse only if the decision is

      clearly against the logic and effect of the facts and circumstances. Id.


[7]   Bush argues that he is struggling with addiction, which is patently true. He

      points out that it is not uncommon for people dealing with an addiction to

      relapse, which is also true. And while we sympathize with his struggles with

      both addiction and mental health issues, the simple fact is that the evidence in

      the record establishes that he is unlikely to succeed on probation at this time. In


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019   Page 3 of 4
      seven months of probation, he failed twenty-five drug tests, regularly missed

      required probation calls, failed to report to probation, and missed a court

      ordered substance abuse assessment. His probation officer testified that in his

      opinion, the local addiction treatment options were not suitable for Bush and

      that Bush would not succeed on probation.


[8]   The trial court took Bush’s struggles into account by recommending that he

      complete the Purposeful Incarceration program and indicating its willingness to

      modify the sentence upon successful participation and treatment. Given this

      record, we find that the trial court did not err by ordering that Bush serve the

      balance of his previously suspended sentence.


[9]   The judgment of the trial court is affirmed.


      May, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019   Page 4 of 4
