MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 12 2019, 10:30 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
Jennifer A. Joas                                       Curtis T. Hill, Jr.
Madison, Indiana                                       Attorney General of Indiana
                                                       Samuel J. Dayton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lyle Friend,                                           March 12, 2019
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       18A-CR-2583
        v.                                             Appeal from the Ripley Circuit
                                                       Court
State of Indiana,                                      The Honorable Ryan J. King,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       69C01-1609-F5-30



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019                 Page 1 of 7
                               Case Summary and Issue
[1]   Lyle Friend pleaded guilty to attempted battery, a Level 5 felony, and was

      sentenced to six years, all suspended to probation. His probation was revoked

      after he tested positive for methamphetamine five times in the first seven

      months of his probation. Friend appeals, raising one issue for our review:

      whether the trial court abused its discretion when it ordered him to serve five

      years of his suspended sentence upon revoking his probation. Concluding the

      trial court did not abuse its discretion, we affirm.



                           Facts and Procedural History
[2]   The State charged Friend on September 1, 2016, with six counts, including

      attempted burglary, a Level 5 felony. On September 13, 2017, the parties

      entered into a plea agreement pursuant to which Friend would plead guilty to

      attempted burglary, the State would dismiss the remaining counts, and Friend

      would be sentenced to six years, all suspended to probation. The trial court

      accepted the plea agreement on October 24, 2017, and Friend began his

      probation that same day. One of the conditions of his probation was that he

      not “possess or consume/use alcohol or other controlled substances.”

      Appendix of Appellant, Volume Two at 54.


[3]   On May 16, 2018, the probation department filed a petition for probation

      violation hearing, alleging that while on probation, Friend had tested positive

      for amphetamine and methamphetamine five times between December 5, 2017


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019   Page 2 of 7
      and May 4, 2018.1 At the probation violation hearing on September 25, 2018,

      Friend admitted he violated the terms of his probation by producing five drug

      screens that tested positive for the presence of methamphetamine. Friend’s

      father testified that Friend had a job waiting for him if he were released. He

      also testified that Friend could live with him and he would administer home

      drug tests; if Friend tested positive, he would “[d]estroy whatever he’s got and

      then we will try to maybe seek him some help . . . .” Transcript, Volume 2 at

      10.


[4]   The State requested that Friend serve “at least” three and one-half years of his

      suspended sentence and that he thereafter be unsuccessfully terminated from

      probation. Id. at 11. Friend requested that he be sanctioned with time served 2

      and remain on probation. The trial court, noting that Friend’s “history’s

      bad[,]” and that he “flamboyantly” violated the terms and conditions of his

      probation, determined that he was not a good candidate for probation and

      ordered Friend to serve five years of his suspended sentence. Id. at 14-15. The

      trial court’s order stated that after Friend successfully completed three years of

      his sentence, the court would recommend a Therapeutic Community and that

      Friend enroll in the Purposeful Incarceration Program. Upon Friend’s



      1
        While on probation in this case, Friend was also on probation out of Decatur County and was involved
      with a Decatur County Department of Child Services (“DCS”) case regarding his child. The drug screens
      were administered as part of the DCS case. DCS forwarded the results to Decatur County probation, which
      also filed a notice of probation violation and shared the results of the drug screens with the Ripley County
      probation department in this case.
      2
        Friend was arrested on a warrant stemming from the notice of probation violation on July 16, 2018, and
      remained in jail until the probation revocation hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019                    Page 3 of 7
      successful completion of an appropriate substance abuse program and if he has

      no conduct violations, the court would consider modifying his sentence. Friend

      now appeals.



                                Discussion and Decision
[5]   Friend solely challenges the sanction imposed by the trial court after he

      admitted to violating his probation. If the trial court finds that a violation

      occurred, the court may impose one 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.


      Ind. Code § 35-38-2-3(h).


[6]   A defendant is entitled to challenge the sanction a trial court decides to impose

      after revoking probation. Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004).

      “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007). Once a trial court has exercised its grace by ordering probation rather

      than incarceration, the court has “considerable leeway” in deciding how to

      proceed. Id. We therefore review a trial court’s decision regarding the sanction

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019   Page 4 of 7
      for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct.

      App. 2011). “An abuse of discretion occurs if the trial court’s decision is

      against the logic and effect of the facts and circumstances before the court.”

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


[7]   Friend contends that it was an abuse of the trial court’s discretion to revoke five

      years of his six-year sentence because “these are technical violations for the use

      of drugs by an addict and not for any new criminal offenses.” Brief of

      Appellant at 10. He argues the trial court had alternatives to sending him to the

      Department of Correction (“DOC”), including home detention or electronic

      monitoring combined with drug treatment, or that, if the trial court deemed

      incarceration necessary, it could have imposed the lesser three and one-half

      year sanction the State advocated. And he argues his mitigating evidence—his

      employment, stable housing, and admitted drug problem—supported a lesser

      sanction.


[8]   We do not consider the use of controlled substances to be a “technical

      violation” of probation. In Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.

      2017), we noted that the defendant’s violation was not a violation of a technical

      provision of his probationary term such as failing to pay a probation user’s fee

      or failing to keep an appointment with his probation officer. See also Heaton v.

      State, 984 N.E.2d 614, 616, 618 (Ind. 2013) (calling the failure to keep the

      probation department informed of current address, to obtain a substance abuse

      evaluation, and to verify employment with the probation department violations

      that were “technical in nature”). Rather, Friend’s positive drug screens mean

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019   Page 5 of 7
       that, at the very least, he committed acts that would constitute the crime of

       possession of methamphetamine on five different occasions.


[9]    Friend was unsuccessfully terminated from probation in another case in 2017

       due to testing positive on multiple drug screens. At the time he was originally

       sentenced in this case, he reported to probation that he was currently attending

       twice weekly substance abuse counseling. And yet he had a positive drug

       screen within six weeks of starting probation in this case, with a positive drug

       screen following almost every month thereafter until the notice of probation

       violation was filed. There is little evidence that Friend even tried to comply

       with the terms and conditions of his probation in this case, and as the trial court

       noted, Friend has demonstrated that he is not a good candidate for probation.

       The trial court’s decision to revoke five years of Friend’s probation is not an

       unwarranted response to the violations he committed, especially given the trial

       court’s willingness to entertain a sentence modification if Friend addresses his

       substance abuse issues. Therefore, we cannot say the trial court abused its

       discretion in the sanction it imposed.



                                              Conclusion
[10]   The trial court did not abuse its discretion in revoking five years of Friend’s six-

       year term of probation and ordering him to serve that time in the DOC. The

       judgment of the trial court is affirmed.


[11]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019   Page 6 of 7
Riley, J., and Kirsch, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2583 | March 12, 2019   Page 7 of 7
