MEMORANDUM DECISION
                                                              May 08 2015, 9:28 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
Jill M. Acklin                                          Gregory F. Zoeller
McGrath, LLC                                            Attorney General of Indiana
Carmel, Indiana
                                                        Kenneth E. Biggins
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Misty Padgett-Essex,                                    May 8, 2015

Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        84A01-1407-CR-309
        v.                                              Appeal from the Vigo Superior
                                                        Court
                                                        The Honorable Michael Rader,
State of Indiana,                                       Judge
Appellee-Plaintiff                                      Trial Court Cause No. 84D05-1308-
                                                        FD-2406




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015     Page 1 of 7
                                         Case Summary

[1]   Appellant-Defendant Misty Padgett-Essex (“Padgett-Essex”) was convicted of

      theft and received a sentence of three years in November of 2013. Her sentence

      was divided into one year of direct placement in home detention with the

      remaining two years suspended to probation. After multiple failures to adhere

      to the conditions of her home detention, the trial court revoked her direct

      placement and probation and ordered her to serve the balance of her previously-

      suspended sentence. On appeal, Padgett-Essex does not dispute the revocation

      of her home detention and probation, but contends that the trial court abused its

      discretion by ordering her to serve the remainder of her previously-suspended

      sentence. We affirm.


                            Facts and Procedural History

[2]   In August of 2013, Padgett-Essex was charged with theft, possession or use of a

      legend drug without a prescription, and unlawful possession of a hypodermic

      syringe, all of which are Class D felonies. She was subsequently sentenced in

      November of that year, with her sentence divided as follows: (1) one year of

      direct placement in the Vigo County Community Corrections (“VCCC”) home

      detention program and (2) two years suspended to probation. On January 26,

      2014, Padgett-Essex began home detention with VCCC for her conviction.


[3]   On March 5, 2014, Padgett-Essex left her residence without authorization for

      two hours and thirteen minutes. She claimed to have received permission from

      Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015   Page 2 of 7
      VCCC, but could not provide the name of the person with whom she had

      spoken, nor could she provide any documentation to substantiate that claim.


[4]   On March 9, 2014, Padgett-Essex provided false information to VCCC in

      violation of the home detention rules. Padgett-Essex contacted VCCC and

      requested permission to go to the grocery store to get medicine. A VCCC

      coordinator testified that Padgett-Essex used this as a ploy to “get out of the

      house,” knowing that VCCC could not deny her access to medication. Tr. p.

      27. The coordinator also testified that “[s]he had used this same tactic several

      times.” Tr. p. 27. The coordinator decided to perform a “field check” on

      Padgett-Essex during this trip, and found that she had been grocery shopping

      instead. Tr. p. 27. When asked to show proof that she had purchased

      medication, she claimed that the receipt had inadvertently been thrown away,

      and was only able to produce receipts for groceries. Padgett-Essex later

      provided a receipt for medication, but the date and time on the receipt showed

      that she purchased the medication later in the day, after the inspection by the

      field coordinator. As a result of this incident, a non-compliance form was filled

      out showing that Padgett-Essex had provided false information to VCCC.


[5]   On March 13, 2014, Padgett-Essex visited a hospital where she was treated for

      a panic attack. While there, she was given Xanax, and claimed that she could

      not recall whether or not she alerted VCCC of her visit to the hospital.

      According to VCCC regulations, individuals in home detention are allowed to

      attend medical services in an emergency, but they are required to provide

      verifying documentation of their trip. Padgett-Essex did not provide any

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      substantiating documents to VCCC regarding her March 13, 2014 trip to the

      hospital. On March 18, 2014, Padgett-Essex tested positive for

      benzodiazepines, while not having a prescription for those drugs, which is also

      a violation of home detention rules.


[6]   On March 17, 2014, Padgett-Essex was fired from her job with the Vigo County

      Commissioner’s Office, which she had gotten via the Volunteer Electronic

      Monitoring Program in order to help pay for her community corrections. It

      was reported that she had been sleeping at work, having unapproved visitors,

      and not meeting the requirements of the program. She was also behind on her

      payments to community corrections by $1252.00.


[7]   On March 19, 2014, Appellee-Plaintiff the State of Indiana (the “State”) moved

      to revoke Padgett-Essex’s home detention and probation. An amended petition

      filed on March 27, 2014, stated that Padgett-Essex had violated the conditions

      of her home detention by leaving her residence without authorization,

      providing false information to VCCC, not contacting VCCC after being

      released from the hospital, being fired from her job at the Commissioner’s

      Office, being in arrears of her fees by $1252.00, and testing positive during a

      drug screen for benzodiazepines. On June 19, 2014, the trial court ordered

      Padgett-Essex to serve the balance of her previously-suspended sentence. She

      was given a total credit of 140 days for her time on home detention and while

      incarcerated. This appeal follows.


                                Discussion and Decision
      Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015   Page 4 of 7
[8]   Padgett-Essex does not dispute that the trial court had sufficient grounds to

      revoke her home detention and probation. Rather, she argues that the

      reinstatement of the entire balance of her previously-suspended sentence is an

      abuse of the trial court’s discretion where the “probationer was actively seeking

      treatment in an effort to become a productive citizen and live a sober life.”

      Appellant’s Br. p. 9.


[9]   It is well settled that “[p]robation 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). After a trial court orders probation rather

      than incarceration, it should have broad discretion in deciding how to proceed.

      Id. Indeed, the Indiana statutes governing these discretionary procedures have

      codified this position. Under Indiana Code section 35-38-2-3(h), when the

      court finds that a person has violated the conditions of her probation, the court

      may continue the probation, extend the probation, or order execution of all or

      part of that person’s sentence. This same discretion holds true for placement in

      community corrections. If a person is found to have violated the terms of her

      placement, the court may change the terms of the placement, continue the

      placement, or revoke the placement and order the person to serve the remainder

      of her sentence. Ind. Code § 35-38-2.6-5. “Both probation and community

      corrections programs serve as alternatives to commitment to the [Department of

      Correction] and both are made at the sole discretion of the trial court.” Monroe

      v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).




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[10]   Accordingly, we will review a trial court’s decision to revoke probation and its

       sentencing decision in a probation revocation proceeding for an abuse of

       discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005). Because

       of similarities between probation and placement with community corrections,

       we treat a review of a home detention revocation the same as we do a probation

       revocation. Monroe, 899 N.E.2d at 691. “An abuse of discretion occurs where

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

       circumstances.” Prewitt, 878 N.E.2d at 188.


[11]   Padgett-Essex contends that the trial court abused its discretion by ordering her

       to serve the entirety of the balance of her previously-suspended sentence “in a

       case where factors suggest that a sanction of less than serving the balance of the

       previously-suspended sentence ... would have been appropriate.” Appellant’s

       Br. p. 4. She argues that the Indiana Supreme Court has noted that an objective

       in sentencing reform is to give favor to those offenders deserving of an earlier

       opportunity to be productive citizens. See State v. Brunner, 947 N.E.2d 411, 417

       (Ind. 2011). However, Padgett-Essex was given that opportunity when she was

       granted placement with community corrections and probation in lieu of

       incarceration. Padgett-Essex’s case is now before this court because she chose

       not to take advantage of that opportunity.


[12]   Padgett-Essex also points out that the Indiana Supreme Court has stated that, in

       reviewing and revising sentencing decisions, principles of equity may be

       considered. See Woods v. State, 583 N.E.2d 1211, 1213 (Ind. 1992). Specifically,

       Padgett-Essex indicates that she had a job at a hotel, had successfully completed

       Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015   Page 6 of 7
       two prior home detention terms, started drug and alcohol treatment, and

       expressed a desire to live her life clean and sober. She states that she was

       candid with the court about her struggles with substance abuse and is

       addressing it while in jail in order to become a more productive citizen.


[13]   Despite the fact that Padgett-Essex was working at a hotel and getting

       treatment, there is no abuse of discretion by the trial court. It is readily

       apparent that the fault herein lies with Padgett-Essex. “Violation of a single

       condition of probation is sufficient to revoke probation.” Wilson v. State, 708

       N.E.2d 32, 34 (Ind. Ct. App. 1999). By leaving her home without permission,

       providing VCCC with false information, not contacting VCCC upon her release

       from the hospital, losing her job with the Commissioner’s Office, falling behind

       on her payments to VCCC, and failing a drug screen, Padgett-Essex ran afoul of

       the minimal standards of conduct required of her. Padgett-Essex violated

       several conditions of her home detention placement, any one of which would

       have been sufficient to justify the revocation of that placement in its entirety.

       Thus, the trial court’s decision to revoke Padgett-Essex’s placement on home

       detention and probation was not an abuse of discretion. If trial courts were not

       afforded this discretion and their probation or placement decisions were

       frequently second-guessed on appeal, trial judges might be less likely to order

       probation or placement going forward. Prewitt, 878 N.E.2d at 188.


[14]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015   Page 7 of 7
