      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be                                  Oct 17 2019, 9:28 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
      the defense of res judicata, collateral                                      and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Rory Gallagher                                           Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Samantha M. Sumcad
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gordon R. George,                                        October 17, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-592
              v.                                               Appeal from the
                                                               Lawrence Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      William G. Sleva, Judge
                                                               Trial Court Cause No.
                                                               47D02-1509-F5-1135



      Kirsch, Judge.


[1]   Gordon R. George (“George”) appeals the termination of his placement in the

      Lawrence County Drug Court program and his sentence of four years executed


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019                 Page 1 of 9
      in the Department of Correction. George raises the following restated issues for

      our review:


              I.       Whether the trial court abused its discretion when it
                       terminated George’s placement in Drug Court; and


              II.      Whether the trial court abused its discretion when it did
                       not find George’s alleged progress toward sobriety as a
                       mitigating factor.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 19, 2015, a concerned citizen called the police to report that a

      man in the parking lot of McDonald’s restaurant in Bedford, Indiana was sitting

      in his car and drinking alcohol with two young children in the car. Appellant’s

      App. Vol. II at 18. The caller described the car to the police, and when the

      police arrived, the driver of the car, later identified as George, was traveling

      eastbound on 16th Street near Poplar Street in Bedford. Id. The police stopped

      the car and, upon approaching the vehicle, immediately observed two young

      children, unrestrained, in the car. Id. The children were George’s

      grandchildren, who are in the custody of George and his wife. Id. When the

      police pulled George over, one of his grandchildren was standing up in the front

      passenger seat, and the other was in the back seat attempting to reach the child

      in the front. Id. The police determined that George was intoxicated, and a




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 2 of 9
      check of his driving status showed that he was a habitual traffic violator for life

      without a valid license. Id.


[4]   On September 21, 2015, the State charged George with operating a motor

      vehicle after forfeiture of license for life as a Level 5 felony 1 and operating a

      vehicle while intoxicated endangering a person with a passenger less than

      eighteen years of age as a Level 6 felony.2 Id. at 17. On February 11, 2016,

      George pleaded guilty to both charges. Tr. Vol. 2 at 4-13; Appellant’s App. Vol. II

      at 49-54. As part of his plea agreement, George agreed to participate in the

      Lawrence County Drug Court program (“Drug Court”). Id. at 49. As part of

      the agreement to participate in Drug Court, alcohol and drug use were

      prohibited. Id. at 24-48.


[5]   On March 23, 2016, George tested positive for alcohol and also failed to re-

      submit a breath test as required by his program. Appellant’s Conf. App. Vol. II at

      55. On May 24, 2016, the State filed a notice of violation, and the trial court

      issued a warrant for George’s arrest. Id. George was arrested but released to

      continue his participation in Drug Court. Id. at 56. On October 23, 2017,

      George failed to submit to a drug screen after being given two opportunities,

      and the next day, George tested positive for methamphetamine. Id. at 61. He

      initially denied using the drug and then told his case manager that someone




      1
          See Ind. Code § 9-30-10-17(a)(1).
      2
          See Ind. Code §§ 9-30-5-2, 9-30-5-3(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 3 of 9
      must have “put methamphetamine in his tea.” Id. The State filed another

      notice of violation, and the trial court issued another warrant for George’s

      arrest. Id. at 61-62. George was arrested but was again released to continue his

      participation in Drug Court. Id. at 64. On June 25, July 18, and July 26, 2018,

      George failed to complete a drug screen as required by his participation in Drug

      Court. Id. at 70. The State filed another notice of violation, and another

      warrant was issued for his arrest. Id. at 70-71. On August 15, 2018, George

      admitted to using methamphetamine again, and a hair follicle test was

      completed that tested positive for methamphetamine. Id. at 76-77.


[6]   Based on George’s multiple instances of non-compliance, on August 15, 2018,

      the State filed a motion to terminate him from Drug Court. Id. at 72-74, 76-77.

      A hearing was held on the State’s motion on October 4, 2018, at which George

      admitted to the allegations. Tr. Vol. 2 at 41, 43, 46, 49. The trial court

      terminated George’s placement in Drug Court, finding that his actions showed

      a “pattern of activity or behavior which would warrant termination.” Id. at 71.

      During sentencing, the trial court found George’s significant criminal history

      and his failure to comply with the requirements and provisions of Drug Court

      to be aggravating factors and found his acceptance of responsibility by pleading

      guilty as a mitigating factor. Id. at 85-86. The trial court imposed an aggregate

      sentence of four years executed in the Department of Correction. Id. at 85-87.

      George now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 4 of 9
                                     Discussion and Decision

                              I.       Termination from Drug Court
[7]   George appeals the termination of his placement in Drug Court. Drug Court is

      a forensic diversion program akin to community corrections or probation, and,

      on appeal, we will review the termination of placement in Drug Court as we do

      a revocation of placement in community corrections or a revocation of

      probation. Withers v. State, 15 N.E.3d 660, 663 (Ind. Ct. App. 2014).


[8]   “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). It is within the discretion of the trial court to determine the conditions of

      probation and to revoke probation if the conditions are violated. Castillo v.

      State, 67 N.E.3d 661, 663-64 (Ind. Ct. App. 2017), trans. denied. Probation

      revocation is a two-step process. Hampton v. State, 71 N.E.3d 1165, 1171 (Ind.

      Ct. App. 2017), trans. denied. First, the trial court must make a factual

      determination that a violation of a condition of probation actually occurred. Id.

      Second, if a violation is found, then the trial court must determine the

      appropriate sanctions for the violation. Id. “In appeals from trial court

      probation violation determinations and sanctions, we review 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, or when the trial court misinterprets the law. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 5 of 9
[9]    George argues that the trial court abused its discretion when it terminated him

       from Drug Court. George contends that, although the trial court found that he

       had shown a pattern of activity or behavior that warranted termination from

       Drug Court, the evidence presented at the termination hearing did not support

       such a finding. He asserts that his individual violations did not amount to a

       pattern of non-compliance and his relapse into using methamphetamine was

       merely an obstacle in the path to recovery on which he had been making

       progress.


[10]   If the trial court “finds that an individual participating in a problem solving

       court3 program has violated a condition of the program, the problem solving

       court judge or hearing officer may . . . terminate the individual’s participation in

       the problem solving court program.” Ind. Code § 33-23-16-14.5(e). Although

       George maintains that the evidence at the termination hearing did not support

       the trial court’s finding, the evidence showed that George tested positive for

       alcohol or methamphetamine on three occasions. Tr. Vol. 2 at 75-77. He also

       missed several drug screens during the course of his Drug Court participation.

       Appellant’s Conf. App. Vol. II at 55, 61, 70, 76. All of these actions were

       violations of the terms of his Drug Court participation. Appellant’s App. Vol. II

       at 24-26. The evidence presented at the termination hearing, therefore, did




       3
         A “‘problem solving court’ means a court providing a process for immediate and highly structured judicial
       intervention for eligible individuals” that incorporates problem solving concepts. Ind. Code § 33-23-16-8.
       “‘[D]rug court’ means a problem solving court focused on addressing the substance abuse issues of
       defendants or juveniles in the criminal justice system.” Ind. Code § 33-23-16-5(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019                  Page 6 of 9
       support the trial court’s finding of a pattern of activity or behavior that justified

       termination. The trial court was within its discretion to conclude that George

       was unwilling or unable to comply with the terms of his Drug Court

       participation and that the termination of his participation was warranted.


                       II.     Failure to Recognize a Mitigating Factor
[11]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Forshee v. State, 56 N.E.3d

       1182, 1185 (Ind. Ct. App. 2016). “An abuse of discretion occurs if the decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. (quotation marks omitted). The determination of mitigating

       circumstances is within the discretion of the trial court. Rogers v. State, 878

       N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial court is not

       obligated to accept the defendant’s argument as to what constitutes a mitigating

       factor, and it is not required to give the same weight to proffered mitigating

       factors as does a defendant. Id. If the trial court does not find the existence of a

       mitigating factor after it has been argued by counsel, it is not obligated to

       explain why it has found that the factor does not exist. Anglemyer v. State, 868

       N.E.2d 482, 493 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

       (Ind. 2007).


[12]   George argues that the trial court abused its discretion when it failed to find his

       substantial progress toward recovery that occurred during his participation in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 7 of 9
       Drug Court to be a mitigating factor in sentencing. He asserts that he was

       completely sober for the majority of the thirty months that he participated in

       Drug Court and completed therapy and treatment. Although he relapsed,

       George contends that he has recognized that he has a problem and believes that

       the trial court should have considered his progress as a mitigating factor when

       sentencing him.


[13]   Although George did make progress toward sobriety during the time he spent in

       Drug Court, the trial court was not required to find this progress as a mitigating

       factor, especially in light of his recent relapse and violations. Rogers, 878

       N.E.2d at 272. When sentencing George, the trial court stated that it did not

       find George’s time of sobriety in Drug Court to be a mitigating factor because

       “there was a pattern of missing screens, not reporting, being dishonest. [He is]

       an individual who graduated from using meth, to be[ing] completely dishonest,

       [and] evading the ability for the program to screen him.” Tr. Vol. 2 at 86. The

       evidence presented at the hearing showed that George had violated the terms of

       his participation in Drug Court by: (1) testing positive for alcohol and failing to

       re-submit a breath test on March 23, 2016; (2) failing to submit a drug screen

       after being given two opportunities and then testing positive for

       methamphetamine in October 2017; (3) failing to complete drug screens on

       June 25, July 18, and July 26, 2018; and (4) admitting to using

       methamphetamine and testing positive for methamphetamine through a hair

       follicle test on August 15, 2018. Appellant’s Conf. App. Vol. II at 55, 61, 70, 76-

       77. George was given many opportunities to correct his behavior, and after a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 8 of 9
       period of progress, his behavior deteriorated as he began using

       methamphetamine. In imposing George’s sentence, the trial court considered

       George’s behavior during Drug Court, and we conclude that the trial court did

       not abuse its discretion when it failed to find George’s progress toward recovery

       as a mitigating factor.


[14]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-592 | October 17, 2019   Page 9 of 9
