      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 FILED
      regarded as precedent or cited before any                        May 26 2017, 9:43 am
      court except for the purpose of establishing
                                                                            CLERK
      the defense of res judicata, collateral                           Indiana Supreme Court
                                                                           Court of Appeals
      estoppel, or the law of the case.                                      and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jane Ann Noblitt                                        Curtis T. Hill, Jr.
      Columbus, Indiana                                       Attorney General of Indiana
                                                              Michael Gene Worden
                                                              Deputy Attorney General



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Rex A. Clark,                                           May 26, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              03A01-1701-CR-119
              v.                                              Appeal from the Bartholomew
                                                              Superior Court
      State of Indiana,                                       The Honorable James D. Worton,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              03D01-1411-FC-5279



      Pyle, Judge.


                                       Statement of the Case
[1]   Rex A. Clark (“Clark”) appeals the revocation of his probation, arguing that

      there was not sufficient evidence to support the revocation and that the trial
      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017        Page 1 of 8
      court abused its discretion by ordering him to serve his previously suspended

      sentence. Finding no error, we affirm the trial court’s judgment.


[2]   We affirm.


                                                    Issues
              1. Whether the trial court abused its discretion by revoking
              Clark’s probation.

              2. Whether the trial court abused its discretion by ordering Clark
              to serve his previously suspended sentence.

                                                     Facts
[3]   In November 2014, the State charged Clark with Class C felony escape and two

      counts of Class A misdemeanor resisting law enforcement. The State also

      alleged that he was an habitual offender. In February 2016, Clark entered into

      a plea agreement and pled guilty to the Class C felony charge in exchange for

      the dismissal of the remaining counts. In March 2016, the trial court imposed

      an eight (8) year sentence, with one (1) year executed in the county jail, one (1)

      year on direct commitment with community corrections, and five (5) years on

      probation with community corrections. The trial court also ordered Clark to

      cooperate with the court’s alcohol and drug program and to obtain a substance

      abuse evaluation.


[4]   A few weeks after sentencing, on March 31, 2016, the State filed a notice of

      probation violation, alleging that Clark had violated his probation by using

      methamphetamine. Clark admitted to the violation, and the trial court

      extended Clark’s probation by six months and continued him on probation.
      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 2 of 8
[5]   Shortly thereafter, on August 4, 2016, the State filed a second notice of

      probation violation, alleging that Clark had violated his probation by using

      suboxone. Clark admitted to the violation, and the trial court allowed Clark to

      remain on probation.


[6]   On October 14, 2016, two Bartholomew County probation officers went to

      Clark’s house to have him submit to an initial drug screen, which revealed a

      positive result for amphetamines. The probation officers then took a saliva

      sample to submit to the lab for further testing. The results of this lab test

      revealed a positive result for methamphetamine.


[7]   Subsequently, on October 27, 2016, the State filed a third notice of probation

      violation, alleging that Clark had again violated his probation by using

      methamphetamine. Thereafter, following a request from Clark, the trial court

      ordered the oral sample to be retested at Clark’s expense. The retested sample

      also came back positive for methamphetamine.


[8]   The trial court held a probation revocation hearing on December 19, 2016.

      During the hearing, State presented testimony from the two probation officers

      who had collected Clark’s saliva for the drug test and offered into evidence,

      without objection, the State’s lab test results (State’s Exhibit 1) and Clark’s

      retested lab results (State’s Exhibit 2). Clark testified at the hearing and denied

      that he had been using methamphetamine at the time he was tested. The trial




      Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 3 of 8
       court determined that Clark had violated his probation by using

       methamphetamine.1


[9]    The trial court then proceeded to a consideration of the appropriate sanction

       based on that violation. Clark testified that it could have been “possible” that

       he could have accidently ingested something that resulted in the positive drug

       screen, and he asked the trial court to either release him to community

       corrections or “terminate [his] probation unsuccessfully and let [him] go

       home[.]” (Tr. Vol. 2 at 71).


[10]   The trial court revoked Clark’s probation and ordered him to serve the

       remaining portion of his previously suspended sentence in the Indiana

       Department of Correction (“DOC”). The trial court recommended that Clark

       be placed in purposeful incarceration and stated that it would be willing to

       consider modifying Clark’s sentence to community corrections if he filed a

       request after completing the purposeful incarceration program. Clark now

       appeals.


                                                      Decision
[11]   Clark argues that the trial court abused its discretion by: (1) revoking his

       probation; and (2) ordering him to serve the remainder of his previously

       suspended sentence. We will address each argument in turn.



       1
        The trial court’s order specified that Clark’s use of methamphetamine that violated probation was “on or
       about the 15th day of October, 2016.” (App. Vol. 2 at 28). The probation officers collected the saliva sample
       on October 14 but mistakenly wrote October 15 on the drug screen form.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017                 Page 4 of 8
       1. Revocation of Probation


[12]   Clark challenges the trial court’s determination that he violated probation by

       using methamphetamine.


[13]   “Probation is a matter of grace left to trial court 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 conditions are violated. Id.; 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). We

       review a trial court’s probation violation determination for an abuse of

       discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances or when the trial court misinterprets the law. Id. When

       reviewing a trial court’s determination that a probation violation has occurred,

       we consider only the evidence most favorable to the judgment, and we will not

       reweigh the evidence or judge the credibility of the witnesses. Sanders v. State,

       825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied.


[14]   Clark argues that there was not sufficient evidence to support the trial court’s

       revocation of his probation. He does not dispute the admissibility of the drug

       tests or the specific findings contained therein; instead, he argues that the State

       failed to prove that he had used methamphetamine because he denied that he

       had. Clark acknowledges that “his denials did not prevent the trial court from


       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 5 of 8
       believing otherwise” but argues that “his denials carry more weight . . . .”

       (Clark’s Br. 9). Clark’s argument is nothing more than a request to reweigh the

       evidence, which we will not do. See Sanders, 825 N.E.2d at 955. When

       determining that Clark had violated probation by using methamphetamine, the

       trial court stated that it had “listened very closely to the evidence[,] and [it]

       ha[d] reviewed [the drug test result] documents very closely as well.” (Tr. Vol.

       2 at 68-69).


[15]   Because the evidence was sufficient to show that Clark violated the terms of his

       probation by using methamphetamine, we affirm the trial court’s revocation of

       his probation.


       2. Order to Serve Suspended Sentence


[16]   Clark also argues that the trial court abused its discretion by ordering him to

       serve his previously suspended sentence.


[17]   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 defendants.” Id. As a result, we

       review a trial court’s sentencing decision from a probation revocation for an

       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 6 of 8
       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.


[18]   The record reveals that the trial court had ample basis for its decision to order

       Clark to serve his previously suspended sentence in the DOC. Significantly,

       this was Clark’s third violation of probation. Clark’s first probation violation,

       which occurred within weeks of sentencing, occurred when Clark used

       methamphetamine. He admitted that he had violated probation by using

       methamphetamine, and the trial court continued him on probation and

       extended it by six months. Clark’s second probation violation involved the use

       of drugs, this time suboxone, and the trial court again granted leniency to Clark

       and allowed him to continue on probation. Clark’s third probation violation at

       issue in this appeal was again based on his use of illegal drugs. After ordering

       Clark to serve the remainder of his previously suspended sentence, the trial

       court attempted to offer him some words of guidance and encouragement:

               Uh, but I am going to be real straight with you, Rex, I think you
               have a significant drug problem, that’s not been addressed very
               well. And I think that the best option, and I know you don’t like
               it, but the best option, for you, I am going to recommend
               purposeful incarceration and have you go to the DOC and have
               you do that. I am going to order you to execute the balance of
               your sentence, but if you complete the purposeful incarceration
               you just file a letter and I will consider modifying you back to
               community corrections or something like that. But you have to
               take this thing seriously and approach this from a different level.
               Okay. Because I see this kind of stuff all the time and I kind of
               get the impression that, you are the type of guy, who can, can

       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 7 of 8
               schmooze people over pretty easily. Alright. But I am going to
               tell you that you don’t schmooze me over, okay.

                                                    *****

               But I want, I want you to do well, I want you to be able to live a
               good, normal life, and not have to come in here and deal with all
               of this crap all the time. I don’t want to see you in here all the
               time. I would rather run into you in the Walmart and exchange
               pleasantries as opposed to seeing you like this all of the time. But
               you’ve got to approach this from a different angle. Purposeful
               incarceration . . . .

                                                    *****

               Just go there and just, just, just do . . . you know they need about
               eight or nine months, to get you through this program. Behave
               yourself for eight or nine months, and graduate the program, I
               think you will be a different guy.

       (Tr. Vol. 2 at 74-76).


[19]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Clark to serve his previously suspended sentence. For

       the foregoing reasons, we affirm the trial court’s revocation of Clark’s

       probation.


[20]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1701-CR-119 | May 26, 2017   Page 8 of 8
