MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Apr 22 2020, 10:46 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Miriam Huck                                               Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana

                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melissa L. Schultheis,                                    April 22, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2276
        v.                                                Appeal from the Bartholomew
                                                          Circuit Court
State of Indiana,                                         The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          03C01-1305-FC-3103



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020                   Page 1 of 7
                                        Statement of the Case
[1]   Melissa L. Schultheis appeals the trial court’s revocation of her probation and

      order for her to serve ten years of her previously suspended sentence.

      Schultheis raises the following two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       revoked her probation.


              2.       Whether the trial court abused its discretion when it
                       ordered her to serve ten years of her previously suspended
                       sentence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In November of 2008, Schultheis pleaded guilty to ten counts of Class D felony

      theft. The trial court accepted her guilty plea and sentenced her to an aggregate

      term of fifteen years, all of which the court suspended to probation. The court

      further ordered Schultheis to pay approximately $92,000 in restitution.


[4]   In October of 2011, the State filed its first petition to revoke Schultheis’s

      probation due to her failure to pay restitution. However, the State later moved

      to dismiss that petition when Schultheis became current on her restitution

      payments. Thereafter, the State filed a second petition to revoke. At an

      ensuing fact-finding hearing in 2017, Schultheis admitted to violating the terms

      of her probation by not keeping up with her restitution payments. The court

      ordered Schultheis to serve thirty days in the Bartholomew County Jail and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 2 of 7
      extended the term of her probation through the end of 2027. In August of 2017

      and July of 2018, the State filed additional petitions to revoke Schultheis’s

      probation, but both of those petitions were eventually dismissed.


[5]   In March of 2019, the State filed another petition to revoke. Among other

      things, the State’s March 2019 petition alleged that Schultheis had committed

      forgery, perjury, and obstruction of justice when she submitted to the court and

      her probation officer a falsely written doctor’s note that attempted to excuse her

      from complying with her community service requirement and her requirement

      to maintain employment, and, by extension, make her restitution payments.


[6]   At the ensuing fact-finding hearing on the State’s March 2019 petition,

      Schultheis’s probation officer testified as follows:


              Q [by the State]. Okay I’m going to hand you what’s been
              marked as State’s Exhibit 6 . . . .


                                                  ***


              Q.       Can you tell me what that is?


              A.       This is a letter excusing [Schultheis] . . . from work.


                                                  ***


              Q.    Okay. And when you received this, did you notice
              anything fishy about it?




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 3 of 7
        A.     I did. When I went back to my office [after receiving it in
        court on February 7,] I looked at it and thought . . . it read funny
        given the date and then the time that she would be off work and
        then I also noticed that the margins did not line up; the signature
        line did not line up with the margins of the note.


        Q.       And what did you do based on that?


        A.      I called . . . Dr. Souza’s office to check the validity of the
        letter.


                                            ***


        Q.       And what did you learn from [Dr. Souza’s nurse]?


        A.    She looked into the records . . . and she told me that they
        did not give that letter to [Schultheis].


                                            ***


        Q.    Now, looking back at Exhibit 6, . . . did anything strike
        you about the dates?


        A.     Well, yes, because the letter . . . stated she will be unable
        to work and should be excused beginning on 10/24/18, which is
        prior to the date this letter was signed and also . . . this letter
        states she will undergo surgery on 12/13/18, so that is almost
        two months prior to the surgery that this letter states she should
        be unable to work.


                                            ***




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 4 of 7
              Q.    And . . . you’re aware that . . . she would be required to
              perform community service in any week in which she was not
              working at least 35 hours . . . correct?


              A.       That’s correct.


              Q.       Okay, and so as of October 24th, was she working?


              A.       She was not. . . . [S]he had lost her job as of October 23rd.


      Tr. Vol. II at 10-13. Following that hearing, the court revoked Schultheis’s

      probation and ordered her to serve ten years in the Department of Correction.

      This appeal ensued.


                                     Discussion and Decision
                                  Issue One: Revocation of Probation

[7]   Schultheis first argues on appeal that the trial court abused its discretion when it

      revoked her probation. We review the trial court’s revocation of the

      defendant’s probation for an abuse of discretion. Bennett v. State, 119 N.E.3d

      1057, 1058 (Ind. 2019). An abuse of discretion occurs when the trial court’s

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

      before the court. Id.


[8]   According to Schultheis, the State failed to present sufficient evidence to prove

      its petition because Dr. Souza testified that she could not be certain whether her

      office generated the letter in question; her office staff has authority to use her



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 5 of 7
       signature on standard letters like the letter in question here; and the signature

       on Schultheis’s letter looked like Dr. Souza’s signature.


[9]    We cannot agree with Schultheis’s argument, which is merely a request for this

       Court to reweigh the evidence on appeal. The testimony of Schultheis’s

       probation officer was that this letter was not in Schultheis’s medical file.

       Further, the dates on the letter were highly suspicious—the letter excused

       Schultheis from community service on the exact date her community service

       requirement became relevant due to her losing her job, and the reason for the

       excuse—a surgery date still some two months away—made no sense. The trial

       court plainly gave substantial weight to the testimony of Schultheis’s probation

       officer and did not give significant weight to Dr. Souza’s inability to recollect

       this particular letter, which the trial court was well within its authority to do.

       We cannot say the court abused its discretion when it revoked Schultheis’s

       probation.


                                      Issue Two: Ten-Year Sentence

[10]   Schultheis next asserts that the trial court abused its discretion when it ordered

       her to serve ten years of her suspended sentence in the Department of

       Correction. In particular, she alleges that the trial court abused its discretion

       when it imposed an executed sentence of ten years and did not consider a less

       excessive incarceration period or placement on probation with community

       corrections supervision. However, she fails to present an argument supported

       by cogent reasoning that addresses the factual basis and grounds for our

       conclusion under Issue One that there was sufficient evidence to support the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 6 of 7
       revocation of her probation. See Ind. Appellate Rule 46(A)(8)(a). Accordingly,

       she has not carried her burden of persuasion on this issue, and we cannot say

       that the trial court abused its discretion when it ordered her to serve ten years of

       her previously suspended sentence.


[11]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2276 | April 22, 2020   Page 7 of 7
