MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               Dec 09 2019, 10:25 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General
Brooklyn, Indiana                                       Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry L. Berkley, Jr.,                                  December 9, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1555
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Michael Rader,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause Nos.
                                                        84D05-1604-F5-1029
                                                        84D05-1406-CM-1566



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019                  Page 1 of 7
                                             Case Summary
[1]   Jerry L. Berkley, Jr. appeals the trial court’s order revoking his probation and

      executing the balance of his suspended sentence of six years. He argues that the

      trial court abused its discretion in ordering him to serve his full six-year

      sentence in the Indiana Department of Correction (“DOC”). Finding no error,

      we affirm.


                                 Facts and Procedural History
[2]   On April 18, 2016, in cause number 84D05-1604-F5-1029, the State charged

      Berkley with four counts: class A misdemeanor operating a vehicle while

      intoxicated; class A misdemeanor operating a vehicle with an ACE of .15 or

      more; level 5 felony operating a motor vehicle after forfeiture of license for life;

      and level 6 felony operating a vehicle while intoxicated based on a prior

      conviction under cause number 84D05-1406-CM-1566. The State also filed a

      notice of intent to seek habitual vehicular substance offender status, alleging

      that Berkley had three previous convictions for operating a vehicle while

      intoxicated, one in 2015 and two in 2000. On March 27, 2017, Berkley agreed

      to plead guilty to level 6 felony operating a vehicle while intoxicated and to the

      habitual vehicular substance offender enhancement. The trial court sentenced

      Berkley to a total of seven years, two years for the level 6 felony conviction and

      five years for the enhancement, with one year to be served on home detention

      and six years suspended to formal probation. Appellant’s App. Vol. 2 at 87.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019   Page 2 of 7
[3]   On October 14, 2017, the State filed a petition to revoke home detention

      placement, alleging that Berkley had violated the terms of his placement by

      failing to maintain contact as required by Vigo County Community

      Corrections, refusing to submit to testing three times, and possessing or using a

      controlled substance, based on one of his drug screens testing positive for Spice.

      Id. at 96-97. On November 2, 2017, Berkley admitted that he violated the terms

      of his home detention placement. Id. at 108. The trial court found that Berkley

      violated the terms of his home detention placement and ordered that he be

      evaluated by Community Corrections for placement in the Home Detention

      Program. Community Corrections determined that Berkley was not

      appropriate for placement in the Home Detention Program. Id. at 109-10.

      Berkley then served the remaining time of his home detention in Vigo County

      Jail.


[4]   On January 10, 2018, Berkley started formal probation. Id. at 109-11. On

      August 14, 2018, the State filed a notice of probation violation, alleging that

      Berkley failed to report to Adult Probation and failed to provide proof of

      enrollment at Substance Abuse Treatment. The trial court issued an amended

      order, directing that Berkley be evaluated for placement in the Jail Linkage

      Program, but that placement was determined to be inappropriate for Berkley.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019   Page 3 of 7
      On October 4, 2018, the trial court then ordered that Berkley be evaluated for

      placement at Club Soda. 1 Berkley was accepted into Club Soda.


[5]   On March 14, 2019, the State filed an amended notice of probation violation,

      alleging that Berkley had been charged with class B misdemeanor public

      intoxication and class B misdemeanor possession of a synthetic drug or a

      synthetic drug lookalike. Id. at 135. On May 15, 2019, the State filed a second

      amended notice of probation violation, alleging that Berkley tested positive for

      Spice three times, failed to report for drug screens five times, failed to call the

      drug screen notification system four times, and failed to report to his probation

      officer. Id. at 139.


[6]   On May 23, 2019, the trial court held a probation violation hearing. Berkley

      admitted that he failed the drug screen and that he had a substance abuse

      problem. The trial court found that Berkley violated the conditions of

      probation by failing three drug screens, failing to call the drug screen

      notification system four times, and failing to report to the probation officer.

      Regarding a suitable sanction for the violations, Berkley’s probation officer

      indicated that either work release or home detention would be appropriate. Tr.

      Vol. 2 at 9. The State agreed and requested that Berkley be placed on home

      detention for one year. Id. at 10. Berkley informed the court that he had

      arranged to be readmitted to Club Soda for a 180-day program and asked to be



      1
       Apparently, Club Soda is some type of residential facility that offers recovery programs for sober living.
      Appellant’s App. Vol. 2 at 130.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019                   Page 4 of 7
      allowed to enter the program. In determining sanctions, the trial court noted

      that this was Berkley’s fourth conviction for driving while intoxicated and that

      treatment programs that had been offered to him had apparently been

      unsuccessful. Id. In addition, the trial court explained,


              [T]he problem that I see is [your] … behavior puts the public at
              risk. So we’ve, you know we’ve tried the usual things. It doesn’t
              seem to be working… I think you need to go over to the DOC
              and go through one of their programs and at least get a wake up
              call that the community is not going to tolerate … repeat drunk
              driving. I mean what am I supposed to do? Wait until you kill
              somebody?


      Id. at 11. The trial court revoked Berkley’s probation and ordered him to serve

      the balance of his six-year suspended sentence in the DOC. The trial court also

      ordered that a modification of Berkley’s sentence be considered upon his

      successful completion of a clinically indicated addiction recovery treatment

      program. This appeal ensued.


                                     Discussion and Decision
[7]   Probation is a matter of grace left to the trial court’s sound discretion, not a

      right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007). The trial court sets the conditions of probation and may

      revoke probation if the probationer violates those conditions. Id. We review a

      trial court’s probation violation determination for an abuse of discretion.

      Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). An abuse of

      discretion occurs where the trial court’s decision is clearly against the logic and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019   Page 5 of 7
      effect of the facts and circumstances before it or where the trial court

      misinterprets the law. Id. In determining whether a trial court has abused its

      discretion, we neither reweigh evidence nor judge witness credibility. Ripps v.

      State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider

      conflicting evidence in the light most favorable to the trial court’s ruling. Id.


[8]   Probation revocation is a two-step process, wherein the trial court first makes a

      factual determination as to whether the probationer violated the terms of his

      probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). The violation of a

      single condition of probation is sufficient to revoke probation, Snowberger v.

      State, 938 N.E.2d 294, 296 (Ind. Ct. App. 2010), and the violation need not

      involve a criminal act. See, e.g., Stephens v. State, 818 N.E.2d 936, 938 (Ind.

      2004) (where violation consisted of missing two psychosexual counseling

      sessions). Once the trial court has found that even a single violation has been

      committed, the court may impose one or more of the following sanctions: (1)

      continue probation, with or without modifying or enlarging the conditions; (2)

      extend the probationary period for not more than one year beyond the original

      probationary period; or (3) order execution of all or part of the sentence that

      was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h).


[9]   Here, the trial court was well within its statutory authority to order execution of

      all six years of Berkley’s previously suspended sentence. Nevertheless, Berkley

      argues that the trial court’s sanction of the maximum allowable sentence in the

      harshest placement possible amounts to an abuse of discretion because his

      probation officer and the prosecutor opined that home detention or work

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019   Page 6 of 7
       release for a year or more was the appropriate disposition and Berkley had

       arranged for enrollment in a 180-day addiction treatment program and had

       obtained secure housing and employment. We are unpersuaded.


[10]   The record shows that Berkley has been convicted of operating while

       intoxicated four times. He has been offered probation and treatment programs

       but has not been able to curb his behavior and seemingly does not understand

       the danger he presents to himself and others. The trial court determined that

       Berkley had committed thirteen violations of his probation. Disturbingly, the

       vast majority of the violations are related to his drug usage. It is clear that

       Berkley requires something more than has already been offered to help him

       overcome his substance abuse issues and to emphasize that driving while

       intoxicated is unacceptable. While incarcerated, Berkley will be offered an

       addiction recovery treatment program. His successful completion of that

       program may result in a modification of his sentence. Under the circumstances

       presented here, we cannot say that the trial court abused its discretion in

       ordering Berkley to serve the balance of his suspended sentence in the DOC.

       Accordingly, we affirm.


[11]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019   Page 7 of 7
