MEMORANDUM DECISION
                                                                 May 26 2015, 9:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before 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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Christopher McGrath,                                    May 26, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A04-1410-CR-507
        v.                                              Appeal from the Dearborn Superior
                                                        Court
                                                        The Honorable Jonathan N. Cleary,
State of Indiana,                                       Judge
Appellee-Plaintiff                                      Cause No. 15D01-0807-FC-13




Bailey, Judge.


Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015       Page 1 of 5
                                             Case Summary
[1]   Christopher McGrath (“McGrath”) appeals an order revoking his probation

      and reinstating four years of the previously-suspended portion of his six-year

      sentence for Possession of a Schedule IV Controlled Substance, as a Class C

      felony.1 He presents the sole issue of whether the trial court abused its

      discretion by ordering reinstatement of four years, as opposed to a lesser period

      of time. We affirm.



                                  Facts and Procedural History
[2]   On April 7, 2009, McGrath pled guilty to possession of a schedule IV controlled

      substance. He was sentenced to 2,920 days imprisonment, with 2,190 days

      suspended to probation. Among the conditions of probation were that

      McGrath refrain from the use of illegal drugs and obey all laws.


[3]   On July 14, 2014, an allegation of probation violation was filed against

      McGrath. A fact-finding hearing was conducted on October 16, 2014, at which

      McGrath admitted he had tested positive for cocaine and had been convicted of

      two new offenses in the State of Ohio.




      1
       Ind. Code § 35-48-4-7(a)(2)(A). We refer to the version of the statute in effect at the time of McGrath’s
      offense.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015                   Page 2 of 5
[4]   After finding that McGrath had violated the terms of his probation, the trial

      court ordered McGrath’s probation revoked and that he be incarcerated for four

      years of the previously-suspended portion of his sentence. McGrath appeals.



                                Discussion and Decision
[5]   Placement on probation is a conditional liberty and not a right. Cox v. State, 706

      N.E.2d 547, 549 (Ind. 1999). A probation revocation hearing is in the nature of

      a civil proceeding and, therefore, the violation need only be proven by a

      preponderance of the evidence. Smith v. State, 727 N.E.2d 763, 765 (Ind. Ct.

      App. 2000). Proof of a single violation of the conditions of probation is

      sufficient to support a decision to revoke probation. Bussberg v. State, 827

      N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.


[6]   Indiana Code Section 35-38-2-3(h) sets forth a trial court’s sentencing options

      where a probation violation has been found:

              If the court finds that the person has violated a condition at any time
              before termination of the period, 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.
              (3) Order execution of all or part of the sentence that was suspended at
                  the time of initial sentencing.
[7]   We review the trial court’s revocation of probation and sentencing decision for

      an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).
      Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015   Page 3 of 5
       An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances before the court. Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007). Generally speaking, as long as the trial court

       follows the procedures outlined in Indiana Code Section 35-38-2-3, the trial

       court may properly order execution of a suspended sentence. Abernathy v. State,

       852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006).


[8]    On July 6, 2010, McGrath was released to probation and signed his notice of

       probation conditions. On July 14, 2014, the State alleged that McGrath had

       violated the terms of his probation, having been convicted of possession of

       heroin and illegal use of paraphernalia in Hamilton County, Ohio. It was also

       alleged that McGrath had failed a drug screen administered by probation

       officers in Ohio, by testing positive for cocaine. At the probation revocation

       hearing, McGrath admitted the truth of the foregoing allegations.


[9]    Indeed, McGrath does not contest the sufficiency of this evidence to establish

       one or more probation violations on his part. Rather, he claims that he is

       deserving of leniency because he participated in intensive drug therapy as part

       of his incarceration in Ohio and his dependents need his income.


[10]   The trial court had an ample basis for the probation revocation decision and

       sentence reinstatement. It is noteworthy that, despite McGrath’s desire for

       leniency, he has a lengthy history of failing to benefit from rehabilitative efforts.

       In 2007, he was convicted of Possession of a Legend Drug and released to

       probation. He violated probation and was convicted of Deception to Obtain a


       Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015   Page 4 of 5
       Dangerous Drug in Ohio. He then was convicted of the possession offense in

       Indiana. McGrath has not demonstrated an abuse of the trial court’s discretion

       in the probation revocation proceedings.


[11]   Affirmed.


       Riley, J., and Barnes, J., concur.




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