MEMORANDUM DECISION                                                              FILED
                                                                             Apr 12 2017, 9:59 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

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
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marilyn K. Viers,                                        April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1609-CR-2106
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D04-1405-FD-563



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017                Page 1 of 8
                                        Statement of the Case
[1]   Marilyn K. Viers (“Viers”) appeals the trial court’s revocation of her probation

      and order for her to serve her previously suspended twelve-month sentence for

      her conviction of Class D felony operating a vehicle while intoxicated with a

      prior conviction.1 She argues that the trial court abused its discretion because it

      should have considered her efforts to seek treatment for her alcohol addiction

      and her inability to pay for a placement in community corrections. Because we

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


[2]   We affirm.


                                                      Issue
                 Whether the trial court abused its discretion in revoking Viers’
                 probation.

                                                     Facts
[3]   On October 13, 2014, Viers was convicted of Class D felony operating a vehicle

      while intoxicated with a prior conviction. She was sentenced to eighteen (18)

      months with six (6) months to be served in community corrections and twelve

      (12) months suspended.


[4]   On January 6, 2016, the probation department filed a petition for violation of

      probation, alleging that Viers had violated her probation by committing three




      1
          IND. CODE § 9-30-5-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 2 of 8
      new offenses in cause number 20D04-1512-F6-1217 (“Cause 1217”): (1) Level

      6 felony operating a vehicle while intoxicated with a prior conviction; (2) Class

      A misdemeanor operating a vehicle while intoxicated endangering a person;

      and (3) Class C misdemeanor operating a vehicle while intoxicated. The

      probation department also noted that Viers’s charges indicated that she had

      violated her probation by consuming alcoholic beverages.


[5]   On July 13, 2016, Viers pled guilty to Level 6 felony operating a vehicle while

      intoxicated with a prior conviction in Cause 1217. She also admitted to

      violating her probation in the instant case. The trial court then held a hearing

      to determine Viers’ sentence for her conviction in Cause 1217 and the sanction

      for her probation violation in the instant case. At the hearing, sixty-four-year-

      old Viers submitted a letter to the trial court in which she explained that she had

      learning disabilities, physical disabilities, and mental health issues due to past

      sexual assault and domestic violence. Her counsel also told the trial court that

      Viers understood that she could no longer drink alcohol and that she had been

      working diligently to treat her addiction problems since her previous

      conviction. Specifically, Viers had completed a YMCA treatment program,

      attended all AA meetings since the previous February, and completed

      community service. She was also enrolled in aftercare for the YMCA program

      and was attending economic empowerment programs at the YMCA. Viers’

      counsel noted that her pre-sentence investigation report showed that she had a

      low risk to reoffend.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 3 of 8
[6]   In response, the State noted that Viers’ conviction in Cause 1217 was her fourth

      conviction for operating while intoxicated and had involved an accident. The

      State also pointed out that Viers had previously violated a placement in

      community corrections and that this probation violation was the second in her

      criminal history.


[7]   In spite of this criminal history and her new offense, Viers requested that the

      trial court allow her to continue her probation with alcohol monitoring. She

      testified that she would lose her disability payments if she were placed in

      community corrections, which would be difficult for her because she had been

      struggling financially and her income was “very low.” (Tr. 29). She also

      believed that she would have to give up her side jobs if she were placed in work

      release.


[8]   At the conclusion of the hearing, the trial court revoked Viers’ probation and

      ordered her to serve her previously suspended twelve (12)-month sentence on

      home detention. Viers now appeals.


                                                  Decision
[9]   On appeal, Viers argues that the trial court abused its discretion when it revoked

      her probation and ordered her to serve her previously-suspended twelve-month

      sentence in community corrections. Specifically, she notes that prior to her new

      offense, she had complied with all of the terms of her probation and had made

      significant progress in her alcohol addiction treatment. In addition, she asserts

      that she cannot afford placement in community corrections and argues that the

      Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 4 of 8
       trial court should have considered her inability to pay before revoking her

       probation and placing her in community corrections.


[10]   We have previously noted that:

               Probation is a matter of grace and a conditional liberty [that] is a
               favor, not a right. The trial court determines the conditions of
               probation and may revoke probation if those conditions are
               violated. The decision to revoke probation is within the sound
               discretion of the trial court. And its decision is reviewed on
               appeal for abuse of discretion. An abuse of discretion occurs
               when the decision is clearly against the logic and effect of the
               facts and circumstances before the court. Further, on appeal we
               consider only the evidence most favorable to the judgment
               without reweighing that evidence or judging the credibility of the
               witness. 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.

       Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015) (quoting Ripps v.

       State, 968 N.E.2d 323 (Ind. Ct. App. 2012) (internal quotations and citations

       omitted)).


[11]   INDIANA CODE § 35-38-2-3(h) provides that if the court finds that a person has

       violated a condition of probation, and the petition to revoke is filed within the

       probationary period, the court may “impose one (1) or more of the following

       sanctions[:]”

               (1) Continue the person on probation, with or without
               modifying or enlarging the conditions.

               (2) Extend the person’s probationary period for not more than
               one (1) year beyond the original probationary period.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 5 of 8
               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.

       Accordingly, the trial court had the statutory authority to revoke Viers’

       probation and require her to serve the remainder of her suspended sentence. See

       I.C. § 35-38-2-3(h)(3).


[12]   Nevertheless, Viers argues that the trial court abused its discretion because it

       should have considered her previous efforts to receive alcohol addiction

       treatment. We are not persuaded by this argument because, at Viers’ hearing,

       the trial court noted that its sanction was an attempt to balance the need to help

       her receive treatment and the need to keep her and members of the community

       safe. Viers’ criminal history indicated that the trial court’s concern for safety

       was especially relevant as Viers’ conviction in Cause 1217 was her fourth

       conviction for driving while intoxicated. Significantly, she was on probation for

       the same offense when she committed her Cause 1217 offense, and she got into

       an accident as a result of her actions. In light of these facts, we find that the

       trial court did not abuse its discretion when it ordered Viers to serve her

       previously suspended sentence.


[13]   Further, we conclude that the trial court did not abuse its discretion by ordering

       Viers’ placement in community corrections without determining her ability to

       pay for such a placement. Viers argues that “an offender’s ability to pay [must]

       be considered before imposing imprisonment as a sanction for failure to comply




       Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 6 of 8
       with financial conditions associated with a sentence.” 2 (Viers’ App. 9). We

       agree that a probationer’s probation may not be revoked due to a failure to pay

       a financial condition. Woods, 892 N.E.2d at 641 (“[F]ailure to pay a probation

       user fee where the probationer has no ability to pay certainly cannot result in a

       probation revocation.”) However, that authority is not relevant here as Viers’

       probation was not revoked as a result of her failure to pay a condition of her

       probation; it was revoked because she committed a new felony offense. Viers

       even acknowledges that the trial court did not impose incarceration as a result

       of her inability to pay.


[14]   Still, Viers argues that the “trial court should have considered [her] inability to

       pay for home detention when deciding whether to revoke probation.” (Viers’

       Br. 9). She does not present any legal support for that argument, though.

       Because she has failed to support her argument with citations to legal authority,

       she has waived it. See Waters v. State, 65 N.E.3d 613, 618 n.2 (Ind. Ct. App.

       2016); Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we have not

       found any legal support for Viers’ argument.3 To the contrary, we note that the

       trial court was more lenient than it could have been. Under INDIANA CODE §

       35-38-2-3(h), the trial court could have ordered Viers to serve her sentence in

       the Department of Correction, but it allowed her to serve her sentence on home




       2
        Viers cites Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008) for this quote, but that passage is not in the
       Woods opinion.
       3
           The State also failed to address this issue.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017                 Page 7 of 8
       detention in community corrections. We have previously held that placement

       in a community corrections program is an alternative to commitment to the

       Department of Correction and is made at the sole discretion of the trial court.

       Brown v. State, 947 N.E.2d 486, 489 (Ind. Ct. App. 2011). “A defendant is not

       entitled to serve [her] sentence in a community corrections program but, as with

       probation, placement in the program is a ‘matter of grace’ and a ‘conditional

       liberty that is a favor, not a right.’” Id. Accordingly, we conclude that the trial

       court did not abuse its discretion when it revoked Viers’ probation and ordered

       her to serve her previously suspended sentence on community corrections.


[15]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1609-CR-2106 | April 12, 2017   Page 8 of 8
