MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Apr 24 2019, 9:04 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
James A. Shoaf                                           Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shelby Bense,                                            April 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2780
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1706-CM-3624



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019                Page 1 of 6
                                       Statement of the Case
[1]   Shelby Bense (“Bense”) appeals the revocation of her probation, arguing that

      the trial court abused its discretion by ordering her to serve her previously

      suspended sentence. Concluding that there was no abuse of discretion, we

      affirm the trial court’s judgment.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion by ordering Bense to
              serve her previously suspended sentence.

                                                     Facts
[3]   In June 2017, the State charged Bense with Class A misdemeanor conversion.

      In January 2018, Bense entered into a plea agreement and pled guilty as

      charged. The parties agreed that Bense would receive a one-year sentence

      suspended to probation. The trial court accepted Bense’s guilty plea and

      imposed the sentence set out in the plea agreement. As part of Bense’s terms of

      probation, the trial court ordered her to obtain a substance abuse evaluation and

      to follow the recommendations from the evaluation.


[4]   Two months later, in March 2018, the State filed a notice of probation

      violation, alleging that Bense had violated her probation by: (1) committing the

      offense of possession of marijuana in Bartholomew County; (2) using

      methamphetamine; (3) failing to go to a substance abuse evaluation; and (4)

      associating with an individual who was on probation, parole, or involved in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019   Page 2 of 6
      illegal activities. At the probation revocation hearing, Bense admitted that she

      had violated her probation under allegations (2), (3), and (4) contained in the

      revocation petition. The trial court allowed Bense to remain on probation and

      extended her probationary period by ninety days. The trial court also ordered

      Bense, who was pregnant, to “get into treatment immediately[.]” (App. Vol. 2

      at 50).


[5]   Shortly thereafter, in August 2018, the State filed a second notice of probation

      violation, alleging that Bense had violated her probation by: (1) committing the

      crimes of possession of heroin and possession of paraphernalia in Bartholomew

      County; (2) failing to comply with substance abuse treatment; (3) failing to

      report her new address; and (4) failing to report to probation. The trial court

      held a probation revocation hearing in September 2018. Bense admitted that

      she had violated her probation under allegations (2), (3), and (4) contained in

      the second revocation petition. The trial court scheduled a dispositional

      hearing for October 2018, but Bense failed to appear for that hearing. In

      November 2018, the trial court held the dispositional hearing. At the beginning

      of the hearing, Bense acknowledged that she had an active warrant out of

      Marion County for a Level 6 felony possession of a controlled substance case.

      The trial court revoked Bense’s probation and ordered her to serve the balance

      of her previously suspended sentence in the Bartholomew County Jail. Bense

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019   Page 3 of 6
                                                  Decision
[6]   Bense argues that the trial court abused its discretion by ordering her to serve

      her previously suspended sentence.


[7]   Our supreme court has held that “a trial court’s sentencing decisions for

      probation violations are reviewable using the abuse of discretion standard.”

      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citing Sanders v. State, 825

      N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied) (rejecting a defendant’s

      argument that his probation violation sanction should be reviewed under the

      inappropriate standard in Indiana Appellate Rule 7(B)). Probation serves as an

      “alternative[] to commitment to the Department of Correction[,]” and is “made

      at the sole discretion of the trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind.

      1999), reh’g denied. A trial court determines the conditions of probation and

      may revoke probation if the conditions are violated. Prewitt, 878 N.E.2d at 188;

      see also IND. CODE § 35-38-2-3(a). Indeed, violation of a single condition of

      probation is sufficient to revoke probation. Gosha v. State, 873 N.E.2d 660, 663

      (Ind. Ct. App. 2007). Upon determining that a probationer has violated a

      condition of probation, the trial court may “[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(h)(3). “Once a trial court has exercised its grace by ordering

      probation rather than incarceration, the judge should have considerable leeway

      in deciding how to proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion

      were not given to trial courts and sentences were scrutinized too severely on

      appeal, trial judges might be less inclined to order probation to future

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019   Page 4 of 6
      defendants.” Id. As a result, we review a trial court’s sentencing decision from

      a probation revocation for an abuse of discretion. Id. (citing Sanders, 825

      N.E.2d at 956). An abuse of discretion occurs where the decision is clearly

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


[8]   Bense asserts that the trial court abused its discretion by ordering her to serve

      her previously suspended sentence and contends that the trial court should have

      placed her in a community corrections program so that she could receive

      substance abuse treatment. We disagree.


[9]   The record reveals that the trial court had a sufficient basis for its decision to

      order Bense to serve her previously suspended sentence. Here, as part of

      Bense’s probation, she was required to get a substance abuse evaluation and to

      follow the treatment recommendations. She did not do so. Within two months

      of being placed on probation, she was charged with possession of marijuana,

      and she admitted that she had violated probation—the first time—by using

      methamphetamine, failing to go to a substance abuse evaluation, and

      associating with an individual who was on probation, parole, or involved in

      illegal activities. The trial court showed Bense leniency and allowed her to

      continue on probation following these violations, and it ordered that Bense,

      who at that time was pregnant, to immediately seek substance abuse treatment.

      Bense, however, squandered this opportunity. Within three months, the State

      filed a second probation revocation petition, alleging that Bense had: (1)

      committed the crimes of possession of heroin and possession of paraphernalia;

      (2) failed to comply with substance abuse treatment; (3) failed to report her new

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019   Page 5 of 6
       address; and (4) failed to report to probation. Bense admitted that she had

       violated probation under allegations (2), (3), and (4), and she admitted that she

       had an active warrant out of Marion County for a Level 6 felony possession of

       a controlled substance case. Based on the record before us, we conclude that

       the trial court did not abuse its discretion by ordering Bense to serve her

       previously suspended sentence. For the foregoing reasons, we affirm the trial

       court’s revocation of Bense’s probation.


[10]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2780 | April 24, 2019   Page 6 of 6
