Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
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:

JEFFREY E. STRATMAN                                 GREGORY F. ZOELLER
Aurora, Indiana                                     Attorney General of Indiana

                                                    BRIAN REITZ
                                                    Deputy Attorney General

                                                                                  FILED
                                                    Indianapolis, Indiana

                                                                              Sep 24 2012, 9:31 am

                                IN THE
                                                                                      CLERK
                      COURT OF APPEALS OF INDIANA                                   of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




BRYAN SCHOLTES,                                     )
                                                    )
        Appellant,                                  )
                                                    )
                vs.                                 )        No. 15A05-1202-CR-78
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee.                                   )


                      APPEAL FROM THE DEARBORN SUPERIOR COURT
                           The Honorable Jonathon N. Cleary, Judge
                               Cause No. 15D01-0812-FD-267


                                        September 24, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Bryan Scholtes (“Scholtes”) pleaded guilty in Dearborn Superior Court to Class D

felony possession of a schedule IV controlled substance and was sentenced to 1,095 days

with 945 suspended to reporting probation. The State subsequently filed a petition to

revoke Scholtes’s probation, because he tested positive for morphine and hydrocodone.

The trial court revoked the remaining 527 days of Scholtes’s probation. Scholtes appeals

and argues that revoking the remaining 527 days of his suspended sentence was an abuse

of the trial court’s discretion.

       We affirm.

                                   Facts and Procedural History

       On January 22, 2009, Scholtes pleaded guilty in Dearborn Superior Court to Class

D felony possession of a schedule IV controlled substance and was sentenced on

February 13, 2009, to 1,095 days with 945 suspended to reporting probation. Scholtes’s

conditions of probation included obeying “all city, county, state and federal laws,” not

using “any illegal drugs or controlled substances,” and agreeing “to drug/alcohol testing

by the probation department or law enforcement officer.” Appellant’s App. p. 55.

       On December 7, 2010, the State filed its first petition to revoke Scholtes’s

probation. On January 21, 2011, Scholtes admitted to violating his probation by

committing the criminal offense of operating a vehicle with a suspended license. The

trial court revoked 180 days of his previously suspended sentence with two days to be

served through incarceration and the remainder to be served through Southeast Regional

Community Corrections intensive in-home detention.




	                                              2
       Three weeks later, on February 11, 2011, the State filed a second petition to

revoke Scholtes’s probation. On April 11, 2011, Scholtes admitted to violating his

probation by using a controlled substance, namely opiates and oxycodone, and the court

ordered him to serve 238 days of his suspended sentence and extended his probation by

one year.

       While serving his probation, Scholtes began participating in the trial court’s

alternative drug and substance abuse court. Between August 31, 2011 and October 5,

2011, Scholtes either tested positive for or self-reported illegal substance abuse on three

separate occasions. Tr. pp. 6-7.

       On January 6, 2012, Scholtes submitted to a urine drug screen and tested positive

for morphine and hydrocodone. The State subsequently filed a third petition to revoke

his probation. At the January 19, 2012 hearing, Scholtes admitted to using a controlled

substance. The trial court found that since this was his third probation violation, ordering

Scholtes to serve the 527 days of his previously suspended sentence was appropriate.

Scholtes now appeals.

                                   Discussion and Decision

       The trial court’s decision whether to revoke probation is reviewed for an abuse of

discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of

discretion occurs if the decision is against the logic and effect of the facts and

circumstances before the court.” Id. Under Indiana Code section 35-38-2-3(a), a petition

to revoke probation may be filed if a person violates a condition of probation during the

probationary period. In addition under Indiana Code section 35-38-2-1(b), the court may


	                                           3
revoke probation if a probationer commits any additional crime. If a person is found to

have violated his probation, the trial court can “[o]rder execution of all or part of the

sentence that was suspended at the time of initial sentencing.” Ind. Code § 35-38-2-

3(g)(3).

       Scholtes argues that revoking 527 days of his suspended sentence was an abuse of

the trial court’s discretion. He asserts that the trial court failed to consider mitigating

factors such as his admission of responsibility and the lack of severity of the allegations

of his probation violation, namely, failing a drug screen. He also points to his efforts in

drug court as a mitigator. See Appellant’s Br. at 4-5.

       A probationer must be provided the opportunity to present evidence that mitigates

his violation. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). However, trial

courts are not required under Indiana Code section 35-38-2-3 to balance “aggravating or

mitigating circumstances when imposing sentence in a probation revocation proceeding.”

Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993), overruled in part on other

grounds by Patterson v. State, 669 N.E.2d 220, 223 n. 2 (Ind. Ct. App.1 995) (holding

that in a probation revocation proceeding, probationer’s mental health should be

considered).	  	  Here, Scholtes was permitted the opportunity to present evidence mitigating

his violation. Tr. p. 8.

       The trial court stated revoking Scholtes’s probation was appropriate, because this

was “a third probation violation” and his “probation violations while on drug court” were

of a “serious nature.” Tr. p. 9. We agree. Scholtes committed three separate probation

violations, and two of the violations were related to his initial criminal offense of


	                                            4
possession of a schedule IV controlled substance. Under these facts and circumstances,

the trial court did not abuse its discretion by revoking the 527 days of Scholtes’s

suspended sentence.

       Affirmed.

VAIDIK, J., and BARNES, J., concur.




	                                        5
