      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                 Dec 07 2017, 7:05 am

      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      David W. Stone IV                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                       Attorney General of Indiana

                                                              Christina D. Pace
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Kelsie N. Shewmaker,                                    December 7, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              48A02-1705-CR-973
              v.                                              Appeal from the Madison Circuit
                                                              Court
      State of Indiana,                                       The Honorable Mark Dudley,
      Appellee-Plaintiff                                      Judge
                                                              Trial Court Cause No.
                                                              48C06-1203-FB-497



      May, Judge.


[1]   Kelsie N. Shewmaker appeals the revocation of one year of her eight-year term

      of probation. Shewmaker argues the trial court improperly relied on her failure

      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-973 | December 7, 2017            Page 1 of 4
      to pay restitution and failure to maintain employment, without first finding she

      was voluntarily unemployed. Because the trial court’s revocation is supported

      by Shewmaker’s use of illegal substances and commission of theft, we affirm.



                        Facts and Procedural History
[2]   On March 12, 2014, Shewmaker began serving her eight-year term of probation

      for two counts of burglary and two counts of theft. On August 5, 2014,

      Shewmaker violated her probation by failing to pay restitution, failing to pay

      probation fees, and failing to obtain a substance abuse evaluation. The court

      returned Shewmaker to probation.


[3]   On December 11, 2015, Shewmaker again violated her probation by failing to

      pay restitution and by testing positive for illicit drugs. The court again returned

      Shewmaker to probation.


[4]   On February 21, 2017, notice of Shemaker’s probation violation was filed. At

      the evidentiary hearing, Shewmaker admitted using illicit drugs, failing to pay

      restitution, and failing to maintain employment. The State also proved

      Shewmaker had stolen merchandise from Walmart on January 11, 2017. The

      trial court found Shewmaker in violation of her probation based on

      Shewmaker’s admissions and the proof of theft, and it revoked one year of

      Shewmaker’s eight-year suspended sentence.



                            Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-973 | December 7, 2017   Page 2 of 4
[5]   The ability to serve a sentence on probation has been described as a “matter of

      grace” and a “conditional liberty that is a favor, not a right.” Rosa v. State, 832

      N.E.2d 1119, 1121 (Ind. Ct. App. 2005) (internal citation omitted). “Probation

      revocation is a two-step process. First, the court must make a factual

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

      If a violation is proven, then the trial court must determine if the violation

      warrants revocation of the probation.” Sanders v. State, 825 N.E.2d 952, 955

      (Ind. Ct. App. 2005) (internal citation omitted), trans. denied.


[6]   Shewmaker argues the trial court should not have revoked her probation based

      on her failure to pay restitution and her failure to maintain employment,

      without also finding she was voluntarily unemployed. Shewmaker is correct

      that probation should not be revoked if a probationer is unable to pay fees

      through no fault of her own. Black v. Romano, 471 U.S. 606, 614 (1985), reh’g

      denied.


[7]   However, Shewmaker admitted using illicit drugs, and the State proved

      Shewmaker committed theft. These two violations permit the court to revoke

      probation. 1 See Baxter v. State, 774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002)




      1
        Shewmaker also argues the trial court failed to consider mitigators and aggravators when revoking her
      probation. In a revocation hearing, a court is not required to consider mitigating or aggravating factors. See
      Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993) (holding trial court did not err by declining to
      consider mitigating circumstances before imposing sanction because Indiana Code section 35-38-2-3 does not
      require a trial court to consider aggravating and mitigating factors when revoking probation), holding narrowed
      by Patterson v. State, 659 N.E.2d 220, 222 n.2 (Ind. Ct. App. 1995) (trial courts should consider a probationer’s
      mental state when deciding sanction for probation revocation). Accordingly, this argument is without merit.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-973 | December 7, 2017               Page 3 of 4
      (violation of a single condition of probation is sufficient to revoke probation),

      trans. denied. Thus, we find no reversible error in the court’s mention of

      Shewmaker’s failure to maintain a job or pay restitution without determining

      whether Shewmaker was voluntarily unemployed. See Figures v. State, 920

      N.E.2d 267, 273 (Ind. Ct. App. 2010) (affirming revocation of probation despite

      one alleged improper finding because revocation was supported by other

      violations).



                                         Conclusion
[8]   As one violation is sufficient to revoke probation, the trial court did not abuse

      its discretion when it revoked one year of Shewmaker’s probation based on her

      use of illicit drugs and commission of theft. We affirm.


      Affirmed.


      Barnes, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-973 | December 7, 2017   Page 4 of 4
