      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any
                                                                           Jul 25 2017, 6:52 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                  CLERK
                                                                           Indiana Supreme Court
      estoppel, or the law of the case.                                       Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Brooklyn, Indiana
                                                               Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bobbie R. Mituski,                                       July 25, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               84A04-1611-CR-2725
              v.                                               Appeal from the
                                                               Vigo Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Michael Rader, Judge
                                                               Trial Court Cause No.
                                                               84D05-1305-FD-1386



      Kirsch, Judge.


[1]   Bobbie R. Mituski (“Mituski”) appeals following the revocation of her

      probation, raising the following restated issues:


      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017          Page 1 of 10
              I. Whether the trial court erred when it revoked her probation;
              and


              II. Whether the trial court’s calculation of Mituski’s accrued
              credit time was proper.


[2]   We affirm in part and remand in part.


                                 Facts and Procedural History
[3]   In May 2013, the State charged Mituski with Class A misdemeanor operating a

      vehicle while intoxicated endangering a person and Class D felony operating a

      vehicle while intoxicated. After the initial hearing, Defendant was released on

      her own recognizance, and she later violated three conditions of her release by

      not enrolling in the alcohol and drug program, refusing to comply with the

      “Alcomonitor Tests,” and failing to provide a current address. Appellant’s App.

      Vol. II. at 20, 25. Although the trial court found that she had violated the terms

      of her release, it did not revoke her release.


[4]   On October 10, 2013, Mituski entered into a plea agreement on the May 2013

      charges, in which she pleaded guilty to the Class D felony operating a vehicle

      while intoxicated charge, and the State dismissed the misdemeanor charge.

      The trial court sentenced her to a three-year sentence, or 1,089 days, all

      suspended to informal probation. As a condition of probation, the trial court

      ordered her to complete 360 hours of community service. Id. at 52. The court’s

      October 10, 2013 order accepting the plea stated that Mituski had 1,089 days to

      complete her service hours; however, the Rules of Informal Probation form,


      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 2 of 10
      signed by Mituski, stated that she agreed to complete 360 hours of community

      service within 540 days of sentencing. Appellant’s App. Vol. II at 54, 58.


[5]   On January 29, 2014, the State filed a petition to revoke probation (“First

      Petition to Revoke”), alleging that Mituski violated her probation by failing to

      pay her alcohol drug program fees. Appellant’s App. Vol. II at 61. Mituski failed

      to appear at a March 2014 hearing and again at a May 2014 hearing, and a

      bench warrant was issued. Mituski was served with the warrant on June 4,

      2014, and she appeared via video at an initial hearing the next day. At that

      hearing, the trial court scheduled the First Petition to Revoke for hearing on

      August 8, 2014 and released Mituski on her own recognizance. She did not

      appear at the August 8 hearing, and another bench warrant was issued

      (“August 2014 Warrant”).


[6]   On September 9, 2015, the State filed another petition to revoke probation

      (“Second Petition to Revoke”), alleging that Mituski violated the conditions of

      her probation by failing to complete her community service hours and paying

      her fees within the 540-day period. Appellant’s App. Vol. II. at 71. In March

      2016, Defendant was arrested on the August 2014 Warrant and was held

      without bond. On March 31, 2016, the trial court held a hearing on the Second

      Petition to Revoke.


[7]   At the hearing, Mituski admitted that she failed to complete the 360 hours of

      community service within the 540-day allotted time, as alleged in the Second

      Petition to Revoke. Tr. at 11. The trial court found that Mituski violated the


      Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 3 of 10
       terms of her probation and revoked her probation. It ordered her to serve her

       previously-suspended 3-year-sentence in the Indiana Department of Correction

       (“DOC”). Appellant’s App. Vol. II at 6, 79, 80.


[8]    In April 2016, Mituski filed a notice of appeal, but then filed a motion for stay

       of appeal so that she could seek sentence modification. Id. at 86-87. This court

       dismissed Mituski’s appeal without prejudice so that she could seek sentence

       modification. In May 2016, Mituski filed in the trial court a petition to modify

       the terms of her sentence. At the May 19 hearing on her petition to modify her

       sentence, the trial court stayed her three-year executed sentence and ordered

       that she be evaluated for placement in a residential treatment facility. The trial

       court also ordered that, if approved, she would remain at the treatment facility

       for a minimum of ninety days and would not possess or consume alcohol or

       controlled substances. Appellant’s App. Vol. II at 90. After being found eligible,

       she was moved on May 27 to the Freebirds Solution Center.


[9]    The trial court held review hearings on June 30, 2016 and August 4, 2016, at

       which Mituski was advised that she was to stay at Freebirds Solution Center for

       a minimum of ninety days and that she was to complete an exit interview

       before she left. Appellant’s App. Vol. II at 95. On August 5, 2016, Mituski left

       the facility and did not return.


[10]   On August 9, 2016, the trial court issued a warrant for Mituski’s arrest because

       she failed to remain at the Freebirds Solution Center for the 90-day period and

       failed to complete the exit interview. Appellant’s App. Vol. II at 95-96. She was


       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 4 of 10
       arrested on the warrant on October 15, 2016, and held without bond. The trial

       court held a hearing on Mituski’s violation of her stayed sentence, and at the

       hearing, evidence was presented that she (1) left the Freebirds Solution Center

       without receiving authorization to leave for more than an overnight, (2) did not

       having an exit interview, and (3) “hit a marijuana blunt two times,” causing her

       to test positive on a drug screen on October 17, 2016. Tr. at 25, 33.


[11]   The trial court found that Mituski had violated the terms of her stayed sentence

       by using marijuana, not remaining at the Freebirds Solution Center for a

       minimum of ninety days, which would have been August 18, 2016, and by not

       completing her exit interview with the director. Id. at 35; Appellant’s App. Vol. II

       at 102. The trial court revoked her previously-suspended sentence and ordered

       her to execute the remainder of her three years at the DOC. Mituski received

       53 days of accrued time towards her sentence.1 Appellant’s App. Vol. II at 102.

       Mituski now appeals.


                                        Discussion and Decision

                                                   I. Probation
[12]   Mituski contends that the trial court erred when it revoked her probation.2

       Probation is a conditional liberty that is a privilege, not a right. Heaton v. State,




       1
        She was also held in contempt of court for disruptive behavior and ordered to serve a 60-day sentence at the
       Vigo County Jail. Appellant’s App. Vol. II at 102.
       2
         The State suggests that Mituski’s challenge to the revocation of her probation is untimely and should not be
       considered, given that her initial appeal of the revocation was dismissed with prejudice to allow her to seek
       sentence modification, which the trial court granted, placing her at the Freebirds Solution Center residential

       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017               Page 5 of 10
       984 N.E.2d 614, 616 (Ind. 2013); Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). A probation revocation proceeding is in the nature of a civil proceeding,

       and, therefore, the alleged violation need be proved only by a preponderance of

       the evidence. T.W. v. State, 864 N.E.2d 361, 364 (Ind. Ct. App. 2007), trans.

       denied. Violation of a single condition of probation is sufficient to revoke

       probation. Id. As with other sufficiency issues, we do not reweigh the evidence

       or judge the credibility of witnesses. Id. We look only to the evidence that

       supports the judgment and any reasonable inferences flowing therefrom. Id. If

       there is substantial evidence of probative value to support the trial court’s

       decision that the probationer committed any violation, revocation of probation

       is appropriate. Id.


[13]   Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition of probation actually

       occurred. Heaton, 984 N.E.2d at 616. Second, if a violation is found, then the

       trial court must determine the appropriate sanctions for the violation. Id.

       “[E]ven a probationer who admits the allegations against him must still be

       given an opportunity to offer mitigating evidence suggesting that the violation

       does not warrant revocation.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).




       treatment facility for a minimum of ninety days. She did not appeal the revocation of her probation until 194
       days after it was revoked; thus, the State urges, she has forfeited her right to appeal the revocation issue. This
       court’s order dismissing Mituski’s first appeal without prejudice expressly stated, “Appellant may, after filing
       a new notice of appeal, raise the issues Appellant would have raised in this appeal along with any new issues
       created by the trial court’s ruling(s) on remand.” See Appellate Docket Case No. 84A01-1604-CR-977.
       Therefore, we will address Mituski’s appeal of her probation revocation.



       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017                  Page 6 of 10
       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

       discretion. Heaton, 984 N.E.2d at 616; Abernathy v. State, 852 N.E.2d 1016,

       1020 (Ind. Ct. App. 2006). An abuse of discretion occurs if the trial court’s

       decision is against the logic and effect of the facts and circumstances before the

       court or when the trial court misinterprets the law. Heaton, 984 N.E.2d at 616.


[14]   In accordance with Indiana Code section 35-38-2-3, a trial court has three

       options if a defendant violates probation. It may: (1) continue the defendant’s

       probation; (2) extend the probationary period for not more than one year

       beyond the original probationary period; or (3) order execution of all or part of

       the suspended sentence. Ind. Code § 35-38-2-3(h). The imposition of an entire

       suspended sentence is well within the trial court’s discretion. Sanders v. State,

       825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005), trans. denied.


[15]   Here, the Rules of Informal Probation, signed by Mituski, provided that she

       agreed to complete 360 hours of community service within 540 days of the date

       of sentencing, which would have been on or about April 3, 2015. Mituski

       concedes that, at the March 31, 2016 hearing, she admitted that she failed to

       complete the required 360 hours of community service within the allotted time

       period. Appellant’s Br. at 7. The record before us thus establishes that she

       violated her probation. T.W., 864 N.E.2d at 364 (trial court may revoke

       probation for single violation of probation).




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 7 of 10
[16]   Mituski argues that, even though she admitted to the allegations of the Second

       Petition to Revoke, “the violation should not have resulted in revocation[,]”

       because she presented mitigating evidence showing that revocation was not

       warranted. Appellant’s Br. at 7. Specifically, she argues, she presented evidence

       that she transferred her community service obligation to Vanderburgh County,

       because she moved there, and then she learned that she incurred a transfer fee,

       which she could not pay, so she eventually moved back to Vigo County and

       requested additional time to complete the community service. She also suggests

       that it was mitigating that “there was confusion” as to whether she had 540

       days or 1,089 days to complete her required 360 hours of community service,

       and, therefore, any violation from a failure to complete those hours should not

       have resulted in a revocation. Id. at 9. Given the record before us, we disagree.


[17]   Here, the State filed a First Petition to Revoke in January 2014, alleging failure

       to pay fees. She failed to appear at two hearings, and a bench warrant was

       issued for her arrest. After it was served and she appeared in court, the trial

       court set another hearing on the First Petition to Revoke, and she failed to

       appear again, and another warrant was issued in August 2014. That remained

       pending until she was arrested in March 2016. Meanwhile, on September 9,

       2015, the State filed the Second Petition to Revoke, alleging that Mituski

       violated the conditions of her probation by failing to complete her community

       service hours within the 540-day period and by not paying the community

       service fees within that same time period.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 8 of 10
[18]   At the March 31, 2016 revocation hearing on the Second Petition to Revoke,

       Mituski admitted the allegations of the petition, and the trial court revoked her

       probation and ordered her to serve the remainder of the previously-suspended

       three-year sentence, but thereafter stayed execution of the sentence, at Mituski’s

       request, and directed that she be placed in a residential treatment facility.

       Mituski knew that she was to remain there for a minimum of ninety days and

       was to participate in an exit interview. She did neither. Instead, she left, did

       not return, and was discharged from the program. Mituski’s claim that her

       mitigating evidence establishes that revocation was not warranted is a request

       for us to reweigh the evidence, which we will not do on appeal. See Richardson

       v. State, 890 N.E.2d 766, 768 (Ind. Ct. App. 2008) (in review of probation

       revocation proceedings, we do not reweigh evidence or judge credibility of

       witnesses).


[19]   Mituski has failed to establish that the trial court’s decision to revoke her

       probation and order her to serve the remainder of her three-year previously-

       suspended sentence was an abuse of discretion.3




       3
         In opposing Mituski’s appeal, the State argues that her challenge to the revocation is moot because, even if
       we found that it was an abuse of discretion to revoke probation, there is no effective relief that this court
       could render. That is, the State maintains, the trial court effectively resolved her challenge to the probation
       revocation when, on remand from this court, the trial court granted her request for sentence modification,
       stayed execution of her previously-suspended three-year sentence, and transferred her to Freebirds Solutions
       Center for at least ninety days. The State’s position is that Mituski is not currently incarcerated based upon
       her probation violation; rather, she is incarcerated “because she violated the conditions of newly stayed
       sentence” by her failure to remain at the Freebirds Solution Center for ninety days and by not completing her
       exit interview. Appellee’s Br. at 14 (citing Tr. at 35). Because we resolve Mituski’s claim on its merits, we do
       not address the State’s mootness argument.

       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017                Page 9 of 10
                                      II. Accrued Credit Time
[20]   Pursuant to Indiana Code sections 35-50-6-3.1 and 35-50-6-4, a person

       imprisoned for a crime or confined awaiting trial or sentencing earns one day of

       credit time for each day he is confined. “Determination of a defendant’s

       pretrial credit is dependent upon (1) pretrial confinement, and (2) the pretrial

       confinement being a result of the criminal charge for which sentence is being

       imposed.” Hall v. State, 944 N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied.

       Here, the trial court’s sentencing order and abstract indicate that Mituski

       received 53 actual days of “jail time credit.” Appellant’s App. Vol. II. at 102-03.


[21]   Mituski asserts that the trial court did not properly calculate her accrued credit

       time for days she spent in jail or the DOC, which she asserts was 89 actual

       days. The State concedes that she may not have received the correct amount of

       accrued credit time and that remand is warranted to calculate the credit time

       and “clarify the precise amount of accrued time [Mituski] is entitled to.”

       Appellee’s Br. at 18. We thus remand with instructions for the trial court to re-

       calculate jail time credit and clarify if and to what extent the three-year sentence

       is reduced for accrued time.


[22]   Affirmed in part, and remanded in part.


[23]   Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1611-CR-2725 |July 25, 2017   Page 10 of 10
