      MEMORANDUM DECISION                                                  FILED
                                                                      Jul 28 2016, 9:38 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                         CLERK
                                                                       Indiana Supreme Court
      precedent or cited before any court except for the                  Court of Appeals
                                                                            and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                       Gregory F. Zoeller
      Lawrenceburg, Indiana                                  Attorney General of Indiana
                                                             Karl M. Scharnberg
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      William Mills, II,                                         July 28, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 15A04-1602-CR-243

              v.                                                 Appeal from the Dearborn Superior
                                                                 Court
      State of Indiana,                                          The Hon. Sally A. McLaughlin,
                                                                 Judge
      Appellee-Plaintiff.
                                                                 Trial Court Cause No. 15D02-1307-
                                                                 FC-45




      Bradford, Judge.



                                            Case Summary
[1]   Following his conviction for Class C felony intimidation, Appellant-Defendant

      William Mills, II, was sentenced to eight years of incarceration with four years

      Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016        Page 1 of 5
      and 180 days suspended to probation. In August of 2015, Appellee-Plaintiff the

      State of Indiana filed a notice of violation of probation in which it alleged that

      Mills refused to submit to a urine drug screen and left the probation office

      without permission. Mills admitted the violations and the trial court revoked

      ten days of his suspended sentence.


[2]   In November of 2015, the State filed a second notice of violation of probation in

      which it alleged that Mills consumed morphine without a valid prescription.

      After Mills admitted the second violation, the trial court revoked two years of

      Mills’s remaining probation. Mills contends that the trial court abused its

      discretion in revoking two years of his remaining probation. Because we

      disagree, we affirm.



                            Facts and Procedural History
[3]   In December of 2013, Mills pled guilty to Class C felony intimidation and was

      sentenced to eight years of incarceration with four years and 180 days

      suspended to probation. Mills’s conviction stemmed from an incident where he

      pulled a knife on and pepper-sprayed a woman who confronted him about

      stealing shoes from her son. On August 24, 2015, the State filed a notice of

      probation violation, alleging that Mills refused to submit to a urine drug screen

      and fled the probation office without permission. Mills admitted to the

      allegations and was ordered to serve ten days of his suspended sentence and

      return to probation afterwards.



      Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016   Page 2 of 5
[4]   On November 23, 2015, the State filed a second notice of probation violation,

      alleging that Mills had tested positive for morphine without having a valid

      prescription. On December 22, 2015, Mills admitted the violation. On January

      7, 2015, the trial court ordered that Mills serve two years of his suspended

      sentence, leaving a remaining balance of two years and 170 days.


                                 Discussion and Decision
[5]   Probation is a “matter of grace” and a “conditional liberty that is a favor, not a

      right.” Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004) (quoting Cox v.

      State, 706 N.E.2d 547, 549 (Ind. 1999)). We review a trial court’s probation

      revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956

      (Ind. Ct. App. 2005), trans. denied. If the trial court finds that the person

      violated a condition of probation, it may order the execution of any part of the

      sentence that was suspended at the time of initial sentencing. Stephens v. State,

      818 N.E.2d 936, 942 (Ind. 2004). Proof of a single violation of the conditions

      of probation is sufficient to support the decision to revoke probation. Bussberg v.

      State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).


[6]   Mills contends that the trial court abused its discretion in ordering that he serve

      two years of his suspended sentence. Indiana Code subsection 35-38-2-3(h)(3)

      allows a trial court, in case of a violation of the terms of probation, to “[o]rder

      execution of all or part of the sentence that was suspended at the time of initial

      sentencing.” The Indiana Supreme Court has held that “a trial court’s




      Court of Appeals of Indiana | Memorandum Decision 15A04-1602-CR-243 | July 28, 2016   Page 3 of 5
      sentencing decisions for probation violations are reviewable using the abuse of

      discretion standard[,]” explaining:


              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. If this discretion were not
              afforded to trial courts and sentences were scrutinized too
              severely on appeal, trial judges might be less inclined to order
              probation to future defendants.

      Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).


[7]   An abuse of discretion occurs where the decision is clearly against the logic and

      effect of the facts and circumstances. Id. As long as the proper procedures have

      been followed in conducting a probation revocation hearing, “the trial court

      may order execution of a suspended sentence upon a finding of a violation by a

      preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

      App. 1999). The “[c]onsideration and imposition of any alternatives to

      incarceration is a ‘matter of grace’ left to the discretion of the trial court.”

      Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996).


[8]   Mills argues that the trial court should have revoked no more than one year of

      his probation instead of two. Under the circumstances of this case, Mills has

      failed to establish an abuse of discretion. There is no allegation that the proper

      procedures were not followed in this case, and Mills admitted that he violated

      the terms of his probation by using morphine without a valid prescription. It is

      worth noting that the instant violation represents Mills’s second probation



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       violation in a three-month period, indicating that he did not benefit from the

       trial court’s earlier, more lenient treatment.


[9]    Moreover, Mills’s history with the juvenile and criminal justice systems

       indicates that the solutions attempted to this point have not been effective in

       deterring him from further criminal activity. Mills, twenty-eight years old at the

       time of the revocation hearing, has juvenile adjudications for battery resulting

       in bodily injury, criminal mischief, and resisting law enforcement. Mills’s adult

       criminal history includes convictions for theft in 2007, strangulation in 2008,

       and invasion of privacy in 2009. By way of explaining its decision to partially

       revoke Mills’s probation, the trial court observed that Mills “has violent

       tendencies as well as substance abuse issues that need to be addressed and can

       best be addressed through a penal institution.” Tr. p. 22. Given Mills’s history

       of violence and substance abuse, we do not find fault with the trial court’s

       rationale. Mills has failed to establish an abuse of discretion.


[10]   We affirm the judgment of the trial court.


       Pyle, J., and Altice, J., concur.




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