MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Aug 10 2017, 9:10 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bobby Collier,                                           August 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A04-1703-CR-560
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally A.
Appellee-Plaintiff.                                      McLaughlin, Judge
                                                         Trial Court Cause No.
                                                         15D02-1511-F6-363



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 1 of 10
[1]   Bobby Collier appeals the trial court’s order that he serve his previously-

      suspended sentence. He raises one issue which we revise and restate as whether

      the trial court abused its discretion in ordering him to serve his previously-

      suspended sentence. We affirm.


                                      Facts and Procedural History

[2]   On March 9, 2016, the trial court entered an Order on Plea, Judgment of

      Conviction and Sentence which states that the parties presented a plea

      agreement, Collier pled guilty, and the court entered judgments of conviction

      for operating while intoxicated as a level 6 felony, and theft as a class A

      misdemeanor. Collier was sentenced to concurrent terms of 910 days with 724

      days suspended and 365 days with 179 days suspended to probation. The order

      of probation required that Collier “[n]ot consume alcohol or illegal substances

      or controlled substances without a prescription” and to “submit to testing for

      same on request of Probation or Law Enforcement Officer” and that he abide

      by all conditions of a Veterans Court Participant Agreement and successfully

      complete Veterans Court. Appellant’s Appendix Volume 2 at 69.


[3]   On April 26, 2016, Collier’s probation officer filed a Request for Veterans Court

      Sanction Hearing alleging Collier failed to report for a drug screen as required,

      and on May 2, 2016, the court ordered him to attend seven self-help meetings.

      On May 26, 2016, the probation officer filed a Second Request for a Veterans

      Court Sanction Hearing alleging that, by the terms of Veterans Court, Collier

      was required to abide by a 10:00 p.m. curfew and that he arrived home forty-six


      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 2 of 10
      minutes late. On May 31, 2016, the court ordered him to complete eight hours

      of community service at the VA in Cincinnati. On September 20, 2016, a

      probation officer filed a Third Request for a Veterans Court Sanction Hearing

      alleging that, by the terms of Veterans Court, Collier was required to submit

      valid prescriptions within twenty-four hours and that he submitted to a urine

      drug screen on September 13, 2016 and tested positive for the opiates of

      hydrocodone and hydromorphone, and did not provide a valid prescription

      until September 20, 2016. That same day the court ordered Collier to serve

      thirty actual days on home detention.


[4]   On November 3, 2016, Collier’s probation officer filed a Fourth Request for a

      Veterans Court Sanction Hearing alleging he tested positive for alcohol on

      October 27, 2016. On November 9, 2016, the probation officer filed an

      Amended Fourth Request for a Veterans Court Sanction Hearing alleging

      Collier tested positive for alcohol on October 27 and November 1, 2016. On

      November 22, 2016, the probation officer filed a Second Amended Fourth

      Request for a Veterans Court Sanction Hearing alleging Collier tested positive

      for alcohol on October 27 and November 1, 2016, and failed to attend a

      required court hearing on November 17, 2016. That same day the court

      ordered that Collier have two days, or one day with good time credit, revoked

      to the Dearborn County Law Enforcement Center. On January 3, 2017,

      Collier’s probation officer filed a Fifth Request for sanction alleging that, by the

      terms of Veterans Court, Collier was required to take all medications as

      prescribed and that, on December 30, 2016, a field officer “conducted a pill


      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 3 of 10
      count and [Collier’s] Hydrocodone prescription was empty.” Appellant’s

      Appendix Volume 2 at 123.


[5]   On January 10, 2017, the State filed a Request for Southeastern Indiana

      Veterans Treatment Court Termination Hearing alleging in part that on

      December 30, 2016, a field officer conducted a pill count and Collier’s

      hydrocodone prescription was empty; Collier advised the field officer that he

      had flushed eighty to eighty-five hydrocodone tablets; on January 3, 2017,

      Collier advised the field officer that he had been abusing his hydrocodone

      prescription; on January 3, 2017, Collier did not appear in court and stated he

      was in the hospital; upon further investigation Collier was seen in the

      emergency department but also submitted to a drug and alcohol screen and

      tested positive for alcohol; and on January 8, 2017, he failed to provide a drug

      screen.


[6]   On January 24, 2017, the court held a probation violation hearing at which

      Collier admitted to the alleged violations. On February 14, 2017, a sentencing

      hearing was held. Collier indicated that he attended the self-help meetings as

      ordered; through his time in Veterans Court he attended multiple AA and NA

      meetings; he was late for his curfew because he was at a birthday party for his

      niece and lost track of time; he completed the eight hours of community service

      as ordered; and there was a positive drug screen and he had a prescription for

      the opiates but did not submit the prescription until later. He indicated he

      completed the ordered thirty days of home detention. When asked about his

      positive tests for alcohol on October 27 and November 1, 2016, he testified that

      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 4 of 10
      several of his close family members including his grandmother had passed away

      during the previous year and he “was kind of almost at the point of giving up.”

      Transcript Volume II at 17. When asked if that was “when things started to

      really go bad for [him] in terms of being successful with the program,” Collier

      responded affirmatively. Id. When asked about his missed court hearing in

      November, he replied he believed that was when he was in the hospital and that

      he had fallen down that morning.


[7]   Collier testified that he was not working, was waiting on disability and had filed

      a disability claim a year earlier, had been participating in VA services for at

      least six or seven years, and had been diagnosed with PTSD and two traumatic

      brain injuries, and when asked if the injuries and PTSD “are all things that

      extend from your time in the service,” he responded affirmatively. Id. at 19.

      He also indicated his substance abuse history dated back as far as he could

      remember and to his teenage years, that it was at its worst four or five years

      earlier, and that Veterans Court had helped him. He testified he was the

      chairperson of his AA classes and that his longest period of sobriety in recent

      memory was probably ten months which probably occurred after entering

      Veterans Court.


[8]   Collier’s probation officer testified that she was aware that Collier has traumatic

      brain injury and he had shown he was capable of showing up for drug screens

      and appointments and submitting prescriptions. She testified that Collier “did

      very well in phase I and a good portion in phase II minus the minor sanctions

      that [sic] things just kind of escalated.” Id. at 27. She stated: “As I noted in the

      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 5 of 10
      PSI, I think [Collier] said it the best himself. He just gave up. Um, he recalled

      one (1) Court hearing where a statement was made and he said he just gave up.

      He felt like he could drink and get away with it, um, and we wouldn’t catch

      him and I think things just escalated.” Id. The officer testified that, since the

      Veterans Court program started in 2013, there had been only three

      terminations. When asked her recommendation, the officer stated:

              Well I mean I don’t know how helpful home detention is going
              to be for [Collier] in regards to um, fees and what not. You
              know, he has been waiting on disability claim for a really long
              time. I do know that to be true. So, I don’t know how helpful
              that’s going to be for him. Obviously, he can’t do work release or
              anything of the sort like that. So, I mean I think, normally our
              recommendation when somebody is terminated is to the
              Department of Corrections because we feel like we’ve given him
              the services that we have to offer at this point and I do feel the
              same way with [Collier].


      Id. at 28-29.


[9]   The court stated its concerns were that Collier “has voiced he’s just given up”

      and “that the operating while intoxicated which is the underlying offense . . .

      indicates that he left the scene of an accident, that he hit two . . . separate

      telephone poles and . . . did not stop” and “so the other concern is . . . his

      substance abuse left unchecked does affect community safety.” Id. at 33-34.

      The court took the matter under advisement. On February 22, 2017, it entered

      an order revoking Collier’s previously-suspended sentence, finding that, due to

      the nature of the underlying offense and his inability to follow through with the


      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 6 of 10
       required conditions of Veterans Court, community safety can best be addressed

       through incarceration.


                                                   Discussion

[10]   The issue is whether the trial court abused its discretion in ordering that Collier

       serve his previously-suspended sentence. Collier does not challenge the finding

       that he violated his probation; instead, he argues the court abused its discretion

       in ordering that he serve the entirety of his previously-suspended sentence and

       asks this court to remand for resentencing. He contends that his violations were

       characterized by the probation department as primarily minor sanctions, the

       trial court’s reasoning was not fully supported by the facts, he had a valid

       prescription at the time he tested positive for an opiate, and he had improved

       during his time with the Veterans Court.


[11]   The State maintains that the court did not abuse its discretion, that “Collier

       repeatedly proved that he is not fit for the program or probation,” “[f]or each

       violation, the court sanctioned Collier more severely than the last, but he was

       undeterred,” the record supports the court’s conclusion that Collier poses a risk

       to community safety, and that his history and attitude toward treatment gave

       the court little choice but to revoke his suspended sentence. Appellee’s Brief at

       8.


[12]   Ind. Code § 35-38-2-3(h) provides:

               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke

       Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 7 of 10
               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.


[13]   The Indiana Supreme Court has held that a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The Court explained that,

       “[o]nce a trial court has exercised its grace by ordering probation rather than

       incarceration, the judge should have considerable leeway in deciding how to

       proceed” and that, “[i]f this discretion were not afforded to trial courts and

       sentences were scrutinized too severely on appeal, trial judges might be less

       inclined to order probation to future defendants.” Id. An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances. Id. As long as the proper procedures have been followed in

       conducting a probation revocation hearing, the trial court may order execution

       of a suspended sentence upon a finding of a violation by a preponderance of the

       evidence. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).


[14]   The presentence investigation report (“PSI”) indicates that Collier was

       convicted of theft in 1994, 1996, and 1997 and of operating a vehicle while

       intoxicated endangering a person as a class A misdemeanor in 2012. He was

       Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 8 of 10
       convicted for operating a vehicle while intoxicated as a level 6 felony and theft

       as a class A misdemeanor and ordered to participate in the Veterans Court

       program in 2016. The PSI further states that Collier reported that he can recall

       seeing pictures of himself intoxicated on the kitchen table at the age of five; his

       father would often give him alcohol; he was regularly consuming alcohol by the

       age of eleven; he was drinking heavy amounts of alcohol while in the military;

       following the death of his son his drinking increased; he was prescribed pain

       medication in 1991 and for fifteen years consumed between twenty and thirty

       pills per day; he successfully completed a methadone clinic program in 2005;

       and that following his discharge from the clinic he “started using pills again

       here and there” and was drinking on a regular basis. Appellant’s Appendix

       Volume 3 at 9. He also reported that he felt “like he was doing really good

       during the first part of Veterans Court and then just gave up” and that he

       “doesn’t want to go to prison but that it might be easier.” Id.


[15]   The record reveals that Collier admitted that he violated the conditions of his

       probation on several occasions. After a missed drug screen, the court ordered

       seven self-help meetings. When he missed his curfew the court ordered eight

       hours of community service, and when he tested positive for opiates and did not

       timely provide a prescription the court ordered him to serve thirty actual days of

       home detention. When he tested positive for alcohol twice and skipped a court

       hearing, the court revoked two days of his suspended sentence. Collier also

       admitted that a field officer conducted a pill count and discovered his

       hydrocodone prescription was empty, that he stated he had flushed the tablets


       Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 9 of 10
       and advised the officer he had been abusing his prescription, and that he later

       failed to provide a drug screen. His probation officer testified he initially did

       well in Veterans Court, then had minor violations, and then “things just kind of

       escalated.” Transcript Volume 2 at 27. She testified that, as Collier had stated,

       he “just gave up.” Id.


[16]   Given these circumstances, we cannot say that the trial court abused its

       discretion in ordering Collier to serve his previously-suspended sentence.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s order that Collier serve his

       previously-suspended sentence.


[18]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-560 | August 10, 2017   Page 10 of 10
