MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                 Jun 23 2017, 8:52 am
regarded as precedent or cited before any
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
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Brooklyn, Indiana                                       Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent N. Simcox,                                        June 23, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        52A02-1702-CR-280
        v.                                              Appeal from the Miami Circuit
                                                        Court
State of Indiana,                                       The Honorable Timothy P. Spahr,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        52C01-1405-FB-21



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017      Page 1 of 4
                                       Statement of the Case
[1]   Brent N. Simcox appeals the trial court’s revocation of his probation. Simcox

      raises a single issue for our review, namely, whether the trial court abused its

      discretion when it revoked Simcox’s probation after Simcox failed a drug test.

      We affirm.


                                 Facts and Procedural History
[2]   In December of 2014, Simcox pleaded guilty to burglary, as a Class B felony.

      The trial court initially sentenced Simcox to eight years with two years

      suspended to probation. However, after Simcox successfully completed a

      purposeful incarceration program while with the Department of Correction, the

      court agreed to modify Simcox’s sentence such that the remainder of his

      executed time could be spent on work release and, later, home detention.


[3]   About one month after his sentence was modified to home detention, Simcox

      failed a drug test and tested positive for methamphetamine and buprenorphine.

      Thereafter, the State filed its notice of probation violation and petition to revoke

      Simcox’s placement. At an ensuing hearing, Simcox admitted to the alleged

      violations. The court then revoked Simcox’s placement and ordered him to

      serve one year and 300 days of his previously suspended sentence. This appeal

      ensued.


                                     Discussion and Decision
[4]   Simcox appeals the trial court’s revocation of his probation. As the Indiana

      Supreme Court has made clear:
      Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017   Page 2 of 4
              “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) (explaining that: “Once a trial
              court has exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If 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.”). A probation hearing is civil in nature, and
              the State must prove an alleged probation violation by a
              preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
              270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
              sufficiency of evidence is at issue, we consider only the evidence
              most favorable to the judgment—without regard to weight or
              credibility—and will affirm if “there is substantial evidence of
              probative value to support the trial court’s conclusion that a
              probationer has violated any condition of probation.” Braxton,
              651 N.E.2d at 270.


      Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).


[5]   According to Simcox, the trial court abused its discretion when it relied on one

      failed drug test to revoke his probation. In particular, Simcox asserts that he

              had a severe substance abuse addiction that began when he was a
              young teen. He also struggled with both depression and anxiety.
              He successfully completed the purposeful incarceration program
              and had no conduct violations while in the D.O.C. Upon release
              to community corrections, he obtained housing and stable
              employment; he took all the steps necessary to have his driving
              privileges reinstated; and he began paying down his child support
              arrearage while attempting to rebuild a relationship with his
              children.


      Appellant’s Br. at 8-9.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017   Page 3 of 4
[6]   Simcox’s argument on appeal is merely a request for this court to reweigh the

      evidence, which we will not do. The trial court emphasized in its decision how

      quickly Simcox had committed these violations upon being placed on home

      detention and Simcox’s history of three prior “unsuccessful terminations of

      probation” in other matters. Tr. Vol. II at 34. Moreover, Simcox’s

      characterization of his failed drug test as “a single” violation, id. at 4, is not

      correct; he failed one drug test, but he failed it for two substances. In sum, we

      reject Simcox’s request to reweigh the evidence and hold that the trial court’s

      judgment is supported by sufficient evidence.


[7]   Affirmed.


      Mathias, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017   Page 4 of 4
