MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jan 25 2019, 9:11 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana                                         Matthew Michaloski
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Whitham,                                          January 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1864
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69C01-0906-FB-11



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019               Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Justin Whitham (Whitham), appeals the trial court’s

      revocation of his probation.


[2]   We affirm.


                                                    ISSUE
[3]   Whitham presents this court with one issue on appeal which we restate as

      follows: Whether the trial court abused its discretion by revoking Whitham’s

      suspended sentence and ordering his previously-suspended sentence to be

      served at the Department of Correction (DOC).


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 24, 2009, the State filed an Information, charging Whitham with three

      Counts of sexual misconduct with a minor, Class B felonies. On October 11,

      2011, the State and Whitham filed a joint motion in tender of conditional

      negotiated plea, in which Whitham agreed to plead guilty to one Count of

      sexual misconduct with a minor, a Class B felony, in exchange for a

      recommended sentence of eighteen years with three years suspended. The

      following day, the trial court accepted the plea and sentenced Whitham to the

      recommended sentence, as well as to the common conditions for probation,

      including not to use controlled substances without a prescription and not to

      commit another criminal offense. The trial court dismissed the two additional

      Counts of sexual misconduct with a minor.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019   Page 2 of 6
[5]   Whitham was released from the Department of Correction (DOC) on July 14,

      2016 and placed on probation. On December 19, 2017, Whitham’s urine-

      analysis drug screen at Ripley County Court returned positive for

      methamphetamine use. At the time, Whitham denied any illegal drug use. On

      December 27, 2017, an outside toxicology laboratory confirmed the positive

      result of the drug screen. Consequently, on January 5, 2018, the State filed a

      petition for probation violation hearing.


[6]   On January 24, 2018, Whitham committed a new offense of possession of a

      narcotic as a Level 6 felony. On February 20, 2018, the State amended the

      petition for probation violation hearing by adding an allegation that Whitham

      had committed this new offense. On July 2, 2018, the trial court conducted a

      hearing on the State’s petition, during which Whitham admitted to the

      violations and pled guilty. The trial court revoked the balance of Whitham’s

      suspended sentence and terminated his probation.


[7]   Whitham now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Whitham maintains that the trial court abused its discretion when it remanded

      him to the DOC for the remainder of his previously-suspended sentence.

      Probation is a matter of grace left to the trial court’s sound discretion, not a

      right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007). The trial court determines the conditions of probation and

      may revoke probation if the probationer violates those conditions. Id. We

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019   Page 3 of 6
       review a trial court’s probation violation determination using an abuse of

       discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014).

       An abuse of discretion occurs where the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before it or where the trial

       court misinterprets the law. Id. In determining whether a trial court has abused

       its discretion, we neither reweigh evidence nor judge witness credibility. Ripps

       v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider

       conflicting evidence in the light most favorable to the trial court’s ruling. Id.


[9]    Probation revocation is a two-step process, wherein the trial court first makes a

       factual determination as to whether the probationer violated the terms of his

       probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation

       is found, the court determines whether the violation warrants revocation. Id.

       Because a probation revocation proceeding is civil in nature, the State need only

       prove the alleged probation violation by a preponderance of the evidence.

       Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single

       violation is sufficient to permit a trial court to revoke probation. Beeler v. State,

       959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.


[10]   After Whitham admitted to both probation violations and pled guilty, the trial

       court could impose one or more of the following sanctions: (1) continue

       Whitham’s probation, with or without modifying or enlarging the conditions;

       (2) extend his 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 the initial sentencing. Ind. Code § 35-38-2-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019   Page 4 of 6
       3(h). Pursuant to the statute, the trial court chose to order the execution of all

       of Whitham’s previously-suspended term.


[11]   Relying on Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016), Whitham

       characterizes the trial court’s decision as an unwarranted response to a minor,

       ‘technical’ violation because he had completed seventeen months of probation

       without any known violations and immediately admitted to the allegations of

       probation violation. In Johnson, the trial court revoked a mentally-handicapped

       offender’s community correction placement for minor, technical violations such

       as straying slightly beyond his prescribed boundaries and failing to rigidly

       adhere to a schedule. Id. at 1231. We concluded that based on his level of

       functioning and resources, his previous successful placement on work release,

       the nature of the violation, and the severity of the court’s sentence, the trial

       court abused its discretion by revoking the entirety of the remaining portion of

       his executed sentence and remanding him to the DOC. Id.


[12]   Unlike the minor violations of Johnson, Whitham’s violations were not trivial

       and the consequences were not unexpected. Whitham used or possessed

       controlled substances on two different occasions; the latter resulting in a new,

       separate offense. Initially, Whitham tried to deceive the trial court by denying

       his drug use before being confronted with the evidence of the outside testing

       laboratory. Repeated use or possession of drugs is not a technical violation of a

       minor probation term. Rather, the prohibition on committing further criminal

       offenses is specified on the front page of the trial court’s judgment of conviction

       and pronouncement of sentence and indicates that upon committing another

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019   Page 5 of 6
       criminal offense, the “probation may be revoked.” (Appellant’s App. Vol. II, p.

       91).


[13]   Whitham now attempts to use his admission to the probation violations to his

       benefit, noting that he admitted to his violation “[a]t the very first opportunity,”

       during the hearing and “threw himself upon the mercy of the court.”

       (Appellant’s Br. p. 11). However, the evidence reflects that, at the time of the

       probation violation hearing, Whitham had already been found guilty of the

       January 2018 offense, possession of a narcotic drug. As such, the trial court

       noted that “the probation violation is somewhat of a foregone conclusion.”

       (Transcript p. 15). Accordingly, we conclude that the trial court did not abuse

       its discretion by imposing Whitham’s previously-suspended sentence.


                                             CONCLUSION
[14]   Based on the foregoing, we affirm trial court’s revocation of Whitham’s

       suspended sentence and imposition of his previously-suspended sentence to be

       served at the DOC.


[15]   Affirmed.


[16]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019   Page 6 of 6
