Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Jun 20 2014, 9:55 am
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:

RYAN W. TANSELLE                                    GREGORY F. ZOELLER
Capper Tulley & Reimondo                            Attorney General of Indiana
Brownsburg, Indiana
                                                    ANDREW FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHARLES COLEMAN,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 32A04-1310-CR-507
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                            The Honorable Karen M. Love, Judge
                              Cause Nos. 32D03-1112-FD-1133
                                    32D03-1204-FD-405


                                          June 20, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

       Charles Coleman appeals from the trial court’s order revoking his probation and

sentencing him to serve 400 days of his previously suspended sentence in the Department

of Correction.

       We affirm.

                                          ISSUE

       Coleman presents one issue for our review which we restate as: whether the trial

court abused its discretion by ordering Coleman to serve 400 days of his previously

suspended sentence in the Department of Correction after his admission to violating the

terms of his probation.

                           FACTS AND PROCEDURAL HISTORY

       On December 8, 2011, a vehicle Coleman was driving was stopped by Clayton

Police Department Officer John Clossey for speeding while driving on U.S. 40 in

Hendricks County. Officer Clossey observed that Coleman appeared to be intoxicated.

Coleman was given three field sobriety tests, each of which he failed. The portable breath

test administered to him at the scene revealed that he registered a .141 blood alcohol

concentration. After consenting to take a certified breath test, Coleman’s blood alcohol

concentration was determined to be .12.

       The State charged Coleman under cause number 32D03-1112-FD-1133 (“FD-

1133”) with one count of operating while intoxicated causing endangerment, a Class A

misdemeanor, one count of operating a vehicle while intoxicated with a blood alcohol

content of at least .08 but less than .15, a Class A misdemeanor, one count of operating

                                            2
while intoxicated causing endangerment while having been convicted of the same offense

within five years, a Class D felony, and operating a vehicle while intoxicated with a blood

alcohol content of at least .08 with a prior conviction within five years, a Class D felony.

       Coleman and the State reached a plea agreement in FD-1133, but prior to the plea

hearing in that case, Coleman was arrested and charged with committing a new set of

violations involving operating a vehicle while intoxicated. On April 13, 2012, Coleman

was operating a vehicle when that vehicle struck a gas pump in Belleville, Indiana. He was

charged in Hendricks County under cause number 32D03-1204-FD-405 (“FD-405”) with

operating while intoxicated causing endangerment, a Class A misdemeanor, and operating

a vehicle while intoxicated with a prior conviction within five years, a Class D felony. On

May 14, 2012, Coleman pleaded guilty to one count of operating a vehicle while

intoxicated causing endangerment while having been convicted of the same offense within

five years, a Class D felony, under FD-1133, and one count of operating a vehicle while

intoxicated with a prior conviction within five years, a Class D felony, under FD-405.

Coleman was placed on probation under both cause numbers.

       On August 21, 2012, a petition and notice of violation of probation was filed against

Coleman in both cases alleging that Coleman had violated his probation by failing to allow

members of the Hendricks County Sheriff’s Department to enter his residence to check for

alcohol. Additionally, the notice alleged that Coleman had left inappropriate voicemail

messages on his probation officer’s telephone and on the telephones of other probation

officers.

       After Coleman’s arrest on the no-bond warrants issued in both cases, Coleman’s

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counsel filed a motion for a psychiatric evaluation to determine Coleman’s competence to

participate in the probation revocation proceedings. The trial court granted Coleman’s

motion and the examinations finding Coleman fit to stand trial were subsequently received

by the trial court.

       On October 29, 2012, the trial court found that Coleman had violated the terms of

his probation by failing to cooperate with probation officers and revoked a portion of

Coleman’s suspended sentences in FD-1133 and FD-405. The trial court sentenced

Coleman to 110 days executed in the Indiana Department of Correction, with credit for

fifty-five days actually served and fifty-five days of good time credit. The probation terms

in both cases were modified, placing Coleman on non reporting probation for 387 days,

requiring Coleman to obtain and cooperate with a home health care nurse and sign a release

to allow for the exchange of information between that home health care nurse and the

probation department, and requiring Coleman to live alone or with a family member. The

sentences were to be served concurrently.

       On June 7, 2013, the probation department filed a second petition and notice of

probation violation against Coleman in both FD-1133 and FD-405 alleging that he failed

to permit law enforcement to enter his home, that he failed to submit to a portable breath

test for alcohol upon request, and that he failed to cooperate and behave respectfully with

the probation department.

       At the evidentiary hearing held on the second petition, Coleman admitted that he

violated the terms and conditions of his probation. Coleman did admit that he refused to

allow a law enforcement officer into his home on June 7, 2013, that he failed to submit to

                                             4
a portable breath test, and that those actions constituted a failure to cooperate with the

probation department.      He argued, however, that he should be given mental health

treatment instead of being returned to the Department of Correction.

       The State argued that Coleman’s probation should be revoked and that he serve 730

days in the Department of Correction. The State claimed that Coleman was a danger to

himself and to others and that because he would not follow instructions, he could not be

supervised by the probation department “in any way.” Tr. at 8. In particular, Coleman

called his probation officer and left messages including vulgarities, and statements about

having sex with her. The probation officer believed there were indications that Coleman

had been drinking when the topic of his voice mail messages to her became inappropriate.

       After taking the matter under advisement, the trial court found that Coleman had

admitted that he violated the terms and conditions of his probation. The trial court revoked

400 days of Coleman’s previously suspended sentences, 200 days in each case, to be served

consecutively in the Department of Correction. In addition, the trial court requested and

recommended that Coleman receive mental health treatment and counseling while in the

Department of Correction. Coleman now appeals.

                              DISCUSSION AND DECISION

       Coleman appeals from the trial court’s order revoking his probation, contending that

the trial court abused its discretion by sentencing him to serve 400 days of his previously

suspended sentence in the Department of Correction. We begin with the premise that

“[p]robation 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). Courts in

                                               5
probation revocation hearings “may consider any relevant evidence bearing some

substantial indicia of reliability.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). It is

within the discretion of the trial court to determine the conditions of a defendant’s

probation and to revoke probation if the conditions are violated. Prewitt, 878 N.E.2d at

188. In a sense, all probation requires “strict compliance” because probation is a matter of

grace, and once the trial court extends this grace and sets its terms and conditions, the

probationer is expected to comply with them strictly. Woods v. State, 892 N.E.2d 637, 641

(Ind. 2008). “If the probationer fails to do so, then a violation has occurred.” Id. “But

even in the face of a probation violation the trial court may nonetheless exercise its

discretion in deciding whether to revoke probation.” Id. (citing Clark Cnty. Council v.

Donahue, 873 N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is deliberately

designed to give trial judges the flexibility to make quick, case-by-case determinations.”)).

       Violation determinations and sanctions are reviewed for 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.” Prewitt,

878 N.E.2d at 188. We consider only the evidence most favorable to the judgment without

reweighing that evidence or judging the credibility of the witnesses. Woods, 892 N.E.2d

at 639 (citing Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)). “If there is substantial

evidence of probative value to support the trial court’s decision that a defendant has

violated any terms of probation, the reviewing court will affirm its decision to revoke

probation.” Id. at 639–40.



                                              6
       “Probation revocation is a two-step process. First, the trial court must make a factual

determination that a violation of a condition of probation actually occurred.” Woods, 892

N.E.2d at 640. Second, if a violation is found, then the trial court must determine the

appropriate sanction for the violation. Id. A probation revocation hearing is civil in nature,

and the State’s burden is to prove the alleged violations only by a preponderance of the

evidence. Cox, 706 N.E.2d at 551. Violation of a single term or condition of probation is

sufficient to revoke probation. Ind. Code § 35-38-2-3(a)(1) (2012). When reviewing an

appeal from the revocation of probation, the reviewing court considers only the evidence

most favorable to the judgment, and does so without reweighing the evidence or

reassessing the credibility of the witnesses. Cox, 706 N.E.2d at 551.

       Coleman admitted that he violated the terms of his probation by refusing to allow

law enforcement to enter his home and administer a portable breath test. His argument on

appeal is that the trial court abused its discretion by placing him in the Department of

Correction because of his mental health issues. He claims that the trial court erroneously

found him to be a danger to society.

       Indiana Code section 35-38-2-3 provides leeway to the trial court in terms of its

disposition upon the finding of a probation violation. Although Coleman presents an

argument akin to that made when sentences are reviewed under Indiana Appellate Rule

7(b), in the context of a trial court’s sentencing decisions for probation violations, the

standard of review is for an abuse of discretion. Prewitt, 878 N.E.2d at 188.

       Prior to the plea hearing for FD-1133, Coleman committed the offenses leading to

the charges filed against him in FD-405. In that case, Coleman was operating a vehicle

                                              7
while intoxicated causing property damage at a gas station. Probation was a part of

Coleman’s original sentence for both cases and he was allowed to continue on probation

after he was found to have committed his first probation violation. Coleman appeals from

the trial court’s dispositional order from his second probation violation. Thus, Coleman

has received leniency from the trial court, but has violated his probation twice nonetheless.

He refused to allow law enforcement officers into his home to administer a portable breath

test, and left disrespectful and inappropriate messages on the telephones of probation

officers. Thus, Coleman’s continued disregard for the law and the rules imposed upon him

in spite of the leniency afforded him support the trial court’s decision to revoke his

probation. The trial court did not abuse its discretion by revoking Coleman’s probation

and reinstating the 400 remaining days of Coleman’s suspended sentences.

       Although Coleman was evaluated and determined to be competent to stand trial, he

previously had been diagnosed as schizophrenic. The trial court requested that Coleman

receive a mental health evaluation and recommended mental health treatment for Coleman

while at the Department of Correction. The trial court made this recommendation at the

conclusion of the evidentiary hearing, at the dispositional hearing, and included that

recommendation in the abstract of judgment for both cases. Coleman has not met his

burden of proving that the trial court’s placement decision is clearly against the logic and

effect of the facts and circumstances. Prewitt, 878 N.E.2d at 188.

                                      CONCLUSION

       In light of the above, we affirm the trial court’s decision.

ROBB, J., and BAILEY, J., concur.

                                              8
