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:

TIA R. BREWER                                        GREGORY F. ZOELLER
Grant County Public Defender                         Attorney General of Indiana
Marion, Indiana
                                                     RICHARD C. WEBSTER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                                                                           Apr 09 2014, 9:18 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

ANTIONE MARSHALL,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 27A05-1308-CR-425
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                          The Honorable Dana J. Kenworthy, Judge
                              Cause No. 27D02-1207-FD-150



                                           April 9, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Antione Marshall appeals the revocation of his probation, arguing that the trial court

abused its discretion in ordering him to serve his previously suspended sentence. Concluding

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

                               Facts and Procedural History

       Marshall pled guilty to class D felony theft, class D felony criminal confinement, class

A misdemeanor battery, and class A misdemeanor possession of marijuana. He received an

aggregate sentence of three years, with one and a half years executed and one and a half years

suspended to supervised probation.

       On April 5, 2013, Marshall was released to probation. The terms of his probation

included in relevant part that he (1) not possess or consume any controlled substances unless

prescribed by a physician and report all prescriptions to his probation officer; (2) not possess

or consume alcoholic beverages; (3) notify his probation officer within twenty-four hours

prior to any change of address, employment, or phone number; and (4) undergo a

drug/alcohol assessment through the Certified Court Program (“CCP”) and comply with

treatment recommendations. Appellant’s App. at 16-17.

       On June 18, 2013, the State filed a petition to revoke Marshall’s probation, alleging

violations of the aforementioned probation conditions. At the probation revocation hearing,

Marshall’s probation officer testified that (1) at a curfew check, Marshall was not at the

address he gave for his residence; (2) he tested positive for marijuana, alcohol, and opiates,

(3) he was ordered to report to probation to deal with these violations, but he failed to report


                                               2
on time; (4) he had not completed the CCP assessment because he twice failed to arrive at the

CCP at the scheduled time; and (5) he told his probation officer that he lived with his

girlfriend after she informed the officer that he no longer lived with her.

       The trial court found that Marshall violated the conditions of his probation by failing

to keep his address current, testing positive for drugs and alcohol, failing to report to

probation as ordered, and failing to complete the CCP as ordered. The trial court also found

that Marshall’s “behavior indicates that he is not willing to follow the most basic rules of

probation,” that his probation officer “gave [him] multiple opportunities to comply with the

rules” before filing the probation revocation petition, and that his “behavior and attitude

indicate[] that he is not a good candidate for continued probation.” Id. at 19. The trial court

revoked his probation and ordered that he serve the balance of his previously suspended

sentence. Marshall appeals.

                                   Discussion and Decision

       Marshall admits that he drank alcohol and took Loratab without notifying his

probation officer, and therefore does not dispute that he violated the terms of his probation.

Rather, he asserts that the trial court abused its discretion in ordering him to serve the balance

of his suspended sentence as a consequence of his probation violations. In reviewing his

argument, we observe that

              Probation is a matter of grace left to trial court discretion, not a right to
       which a criminal defendant is entitled. The trial court determines the
       conditions of probation and may revoke probation if the conditions are
       violated. Ind. Code Ann. § 35-38-2-3 (West 2007). 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

                                                3
        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. Accordingly, a trial court’s sentencing decisions for probation
        violations are reviewable using the abuse of discretion standard. An abuse of
        discretion occurs where the decision is clearly against the logic and effect of
        the facts and circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).

        Marshall argues that his violations were not that serious and were due to the

challenges that he faced upon his initial release from prison. He asserts that he did not

commit a new criminal offense, he did report to probation and the CCP but was late, and he

took Loratab from an old prescription because he did not have a medical provider to give him

a new prescription. He argues that he was finally able to obtain a stable living situation and

obtain treatment for his bipolar and schizophrenia from Cornerstone Behavioral Health

Center.1

        We acknowledge that the transition from prison to the outside may be difficult, but

Marshall committed multiple violations within two months of his release. Three of his

violations involved drugs and alcohol, indicating that he could substantially benefit from the

CCP drug and alcohol assessment and treatment, but he was unable to obtain the assessment

because he did not arrive on time to either of his appointments. Further, as the trial court

found, Marshall was unable to comply with the most basic requirements of probation. He did

not report his current address to his probation officer or arrive at his appointments with her


        1
            Marshall asserts that the trial court failed to consider aggravating and mitigating circumstances.
However, Indiana Code Section 35-38-2-3, which governs violation of conditions of probation, does not
require a trial court to balance aggravating and mitigating circumstances when determining sentencing upon
finding a violation of probation.


                                                      4
on time. We cannot say that the trial court’s decision to impose the balance of his suspended

sentence is against the logic and effects of these facts and circumstances. Therefore, we

affirm the trial court’s revocation of Marshall’s probation.

       Affirmed.

BAKER, J., and BARNES, J., concur.




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