MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Nov 29 2017, 9:29 am

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
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Tyler Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Franklin Allen,                                         November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1706-CR-1289
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1105-FA-417



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017         Page 1 of 8
                                Case Summary and Issue
[1]   In 2012, Franklin Allen was sentenced to twenty years in the Indiana

      Department of Correction (“DOC”) for possession of cocaine, a Class B felony.

      His sentence was suspended and he was released to probation in 2014. The

      State thereafter filed a petition to revoke Allen’s probation alleging Allen failed

      to submit to required urine screens on several occasions and tested positive for

      the presence of alcohol or controlled substances on several other occasions.

      Following a hearing, the trial court revoked Allen’s probation and ordered him

      to serve the balance of his previously suspended sentence. Allen appeals,

      raising one issue for our review, which we restate as whether the trial court

      abused its discretion in determining the sanction for his violation. Concluding

      the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   In 2011, the State charged Allen with one count of Class A felony dealing in

      cocaine, two counts of Class B felony dealing in cocaine, and one count of

      Class D felony intimidation. In 2012, Allen pleaded guilty to possession of

      cocaine as a Class B felony pursuant to a Drug Court Participation Agreement

      that provided judgment and sentencing would be deferred while Allen

      participated in a drug court program. If Allen successfully completed the

      program, the case would be dismissed. If he failed to complete the program,

      the trial court would enter judgment of conviction and Allen would be

      sentenced at the trial court’s discretion. Allen violated the agreement twice

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 2 of 8
      within the first month and the drug court filed a notice of intent to terminate

      him from the drug court program. Following a hearing, the trial court

      terminated Allen’s participation in drug court and sentenced him to twenty

      years of incarceration at the DOC. However, the court indicated its willingness

      to modify Allen’s sentence if he successfully completed a therapeutic

      community program at the DOC. After Allen successfully completed a DOC

      purposeful incarceration program in 2013, the trial court suspended his sentence

      and released him to supervised probation. Allen then successfully completed a

      local re-entry program in 2015, and the trial court further modified his sentence

      to require only three years of his suspended sentence be served on supervised

      probation.


[3]   The terms of Allen’s probation provided that he was not to consume or possess

      any controlled substance except those prescribed by a physician and that he was

      to submit to alcohol and drug testing as requested. On June 6, 2016, the State

      filed a petition to revoke Allen’s probation, alleging a series of failed (five times)

      and missed (four times) drug screens since January 16, 2016. A warrant was

      issued for Allen’s arrest. On June 23, 2016, the parties agreed that Allen would

      be released from custody on the condition he immediately report to and

      successfully complete an inpatient treatment program. Allen was taken into

      custody at some point after that date and released again on August 5, 2016,

      with the condition he immediately report to and successfully complete a VA

      inpatient treatment program. A second petition to revoke was filed on April 12,

      2017, alleging an additional failed drug screen.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 3 of 8
[4]   Following a fact-finding hearing on May 18, 2017, the trial court revoked

      Allen’s probation and ordered that he execute the balance of his sentence.

      Allen now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[5]   Probation revocation is a two-step process: first, the court must make a factual

      determination that a violation of a condition of probation occurred; then, if a

      violation is proven, the court must determine if the violation warrants

      revocation of probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.

      2016). The State need only prove the alleged violations by a preponderance of

      the evidence. Ind. Code § 35-38-2-3(f). Once the trial court has determined that

      probation should be revoked, imposing a sanction for the probation violation

      lies within the sound discretion of the trial court, and we will reverse only for an

      abuse of that discretion. Hickman v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App.

      2017). A trial court abuses its discretion by ruling in a manner that is clearly

      against the logic and effect of the facts and circumstances before it, or by

      misinterpreting the law. Id. If the court finds that a person has violated even a

      single condition of probation, the court may impose one or more sanctions,

      including ordering execution of all or part of a suspended sentence. Ind. Code §

      35-38-2-3(h).




      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 4 of 8
                                              II. Sanction
[6]   At Allen’s probation revocation hearing, Megan Enright, Allen’s probation

      officer, testified. The allegations of the notice of probation violation were that

      Allen had missed or failed several drug tests. Enright testified that she had

      received the results of several drug tests showing Allen had used cocaine and/or

      alcohol. On cross-examination, Enright was asked if Allen had performed

      reasonably well for almost a year in probation until the urine screen issue at the

      beginning of 2016. Enright disagreed, noting Allen completed the re-entry

      program sometime between April and July 2015 and had a positive drug screen

      at the end of August. Allen was also instructed to call about an intensive

      outpatient program (“IOP”) in August 2015:


              Q: Did he do the IOP assessment?
              A: Yes.
              Q: Did he go through IOP treatment?
              A: I do not think he completed that. March 24th, 2016 we
              agreed that IOP was not working for him and that he needed to
              go to the VA for in-patient substance abuse treatment.


      Id. at 9-10. Ultimately, Enright did not believe that continued probation would

      be appropriate because of Allen’s habitual relapses even after completing a

      given course of treatment. Allen also testified and when asked if he completed

      the IOP program Enright referenced, stated that he did. He acknowledged his

      relapses, including a relapse in 2016 when he was using cocaine. The trial court

      found the State had established by a preponderance of the evidence that Allen

      had violated the terms of his probation and heard evidence regarding an


      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 5 of 8
      appropriate sanction. Allen again testified, revealing several health issues,

      acknowledging he was a longtime drug user, and stating that although he

      “keep[s] trying to overcome this . . . I just keep falling short . . . .” Transcript at

      15. Allen’s counsel conceded some length of punishment was in order but

      argued that the full fourteen years remaining on his sentence was not

      appropriate, asking instead for three years executed. The trial court stated the

      court had “done literally everything that’s available to give Mr. Allen the

      structure and support to meet his various and sundry . . . needs and nothing

      we’ve tried has been successful.” Id. at 16. Accordingly, the court agreed with

      Enright that probation was no longer a viable option and sentenced Allen to

      serve the remainder of his sentence in DOC.


[7]   Allen does not contest the revocation of his probation, acknowledging he had

      consumed illegal substances in violation of the rules of his probation. See Brief

      of Appellant at 9. Instead, Allen argues that he should not have been ordered

      to serve the entirety of his original sentence in the DOC for two reasons: 1)

      Enright “lied” when she testified he had not completed the IOP program, Br. of

      Appellant at 9, and 2) after Allen completed the re-entry program, the trial

      court modified his sentence to require that only three years of his suspended

      sentence be served on supervised probation; therefore, his executed sentence

      should be no longer than those three years.


[8]   As for Enright’s testimony, she did not testify that Allen did not complete the

      IOP program; she testified that she did not “think” Allen completed the

      program. Tr. at 9. Even if Enright was mistaken, her statement is not a “lie,”

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 6 of 8
      as Allen tries to color it. Further, even if the trial court had been unequivocally

      informed that Allen had completed the program, we cannot agree with Allen’s

      assertion that the trial court “would have exercised its discretion . . . to sentence

      him to a lesser sentence[.]” Br. of Appellant at 9. Allen was allegedly involved

      in the IOP in March of 2016, and yet he also started testing positive for drugs

      and alcohol in March of 2016 and tested positive several times thereafter.

      Finally, Allen’s completion of an IOP program was not at issue in the probation

      revocation proceeding, as the only allegations concerned missed or failed drug

      screens. Given all of Allen’s violations during and after any such program, we

      cannot say the trial court would have or should have imposed a lesser sanction.


[9]   As for Allen’s argument that because he only had three years of supervised

      probation, he should only be ordered to serve three years executed for violation

      of his probation, he offers no authority supporting such a proposition. Allen

      was given a twenty-year executed sentence, after first being given the

      opportunity to avoid a criminal conviction and sentence altogether. The trial

      court suspended Allen’s sentence after less than two years of incarceration to

      supervised probation, then modified his sentence to require that he “serve three

      (3) years of the suspended sentence” on supervised probation. Appendix of

      Appellant, Volume 3 at 26. To the extent Allen argues he believed his sentence

      as a whole had been modified to three years, the record does not support this

      assertion. Allen was always subject to a twenty-year sentence and the trial

      court had the discretion to order him to serve any or all of the remainder of that




      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 7 of 8
       twenty-year sentence upon finding a violation and revoking his probation. Ind.

       Code § 35-38-2-3(h)(3).


[10]   Finally, in general, we note the sanction imposed by the trial court was not an

       abuse of discretion. In the five years this case was before the trial court, Allen

       had failed to successfully complete a drug court program. He began using drugs

       again almost immediately after successfully completing purposeful

       incarceration and a re-entry program in July 2015 as evidenced by Enright’s

       testimony that he failed a drug screen on August 27, 2015. He was ordered to

       complete two different inpatient treatment programs and was unable to

       successfully complete either program. In sum, Allen was offered many

       opportunities to avoid re-incarceration and failed to avail himself of any of

       them. The trial court’s order that Allen serve the entirety of his previously

       suspended sentence was not against the logic and effect of the facts and

       circumstances presented here.



                                              Conclusion
[11]   The sanction imposed by the trial court upon finding that Allen had violated his

       probation was not an abuse of discretion. The judgment of the trial court is

       affirmed.


[12]   Affirmed.


       Riley, J., and Pyle J., concur.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-1289 | November 29, 2017   Page 8 of 8
