Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                        Dec 18 2013, 8:48 am
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:

LEANNA WEISSMANN                                GREGORY F. ZOELLER
Lawrenceburg, Indiana                           Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TIMOTHY J. FUGATE,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 16A01-1306-CR-262
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE DECATUR CIRCUIT COURT
                     The Honorable Matthew D. Bailey, Special Judge
                             Cause No. 16C01-0901-FA-16



                                    December 18, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
      The appellant-defendant Timothy J. Fugate challenges the revocation of his

probation, claiming that the trial court erred in sentencing him to five years of executed

time in the Indiana Department of Correction (DOC), eight of which had been originally

suspended. Fugate admitted to two probation violations that included committing the

criminal offenses of battery and possession of marijuana. Fugate has amassed four

misdemeanor convictions and two prior felony convictions.        Fugate admitted at the

dispositional hearing that he still smokes marijuana and has a drug problem.

      Under these circumstances, we conclude that the trial court did not err in revoking

Fugate’s probation and ordering him to serve five years of the originally-imposed eight-

year suspended sentence.

                                            FACTS

      On January 20, 2009, Fugate was charged with various drug offenses including

dealing in methamphetamine, a class A felony, possession of pseudoephedrine, and

possession of marijuana. In January 2010, Fugate and the State entered into a plea

agreement, whereby Fugate agreed to plead guilty to dealing in methamphetamine as a

class B felony in exchange for dismissal of the remaining charges as well as a pending

probation revocation petition in another case. The trial court accepted the agreement and

sentenced Fugate to fourteen years of incarceration, with eight years suspended to

supervised probation.

      On April 17, 2012, the State petitioned to revoke Fugate’s probation when it

alleged that he had committed battery and failed to pay certain fees. Fugate admitted to

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committing the battery, and the trial court revoked 130 days of Fugate’s suspended

sentence.

       On December 17, 2012, the State filed a second petition to revoke Fugate’s

suspended sentence, alleging that Fugate had violated the terms of his probation by

failing a drug test and not paying certain fees. During a hearing on the second revocation

on March 15, 2013, Fugate admitted that he tested positive for THC.

       During the dispositional hearing on May 13, 2013, Fugate admitted that he had

tested positive for marijuana and acknowledged that he still occasionally smokes

marijuana. Fugate also admitted that he has a drug problem, particularly with marijuana.

       Fugate requested leniency so that he could find employment and asked the trial

court not to impose any executed time on the probation violation. However, Fugate

admitted that this was his second probation violation in the case. The pre-sentence

investigation report revealed that Fugate had accumulated four misdemeanor convictions

and two prior felony convictions. Fugate had been granted leniency in those cases but he

often violated probation conditions. In fact, Fugate was on probation when he committed

the instant drug offenses.

       The trial court concluded that the second violation in this case warranted the

revocation of Fugate’s probation. However, because Fugate admitted the violation, the

trial court did not believe that it should order Fugate to execute the remaining portion of

his suspended sentence. As a result, the trial court terminated Fugate’s probation as



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unsuccessful and ordered him to serve five years of the originally-suspended eight-year

sentence. Fugate now appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       Probation is a matter of grace that is left with the trial court’s discretion to

determine probation conditions. Jones v. State, 976 N.E.2d 1271, 1280 (Ind. Ct. App.

2012), trans. denied. Probation revocation is a two-step process: the trial court must first

make a factual determination that a violation has occurred, and it must then determine the

appropriate sanction for the violation. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

       A defendant’s probation may be revoked for violating a single condition of

probation. Bass v. State, 974 N.E.2d 482, 488 (Ind. Ct. App. 2012). When the trial court

finds a violation, we review the determination of the sanctions imposed for an abuse of

discretion. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied. An

abuse of discretion occurs only when the trial court’s decision is clearly against the logic

and effect of the facts and circumstances or where the trial court misinterprets the law.

Heaton, 984 N.E.2d at 616.

                                 II. Fugate’s Contentions

       Fugate argues that the trial court erred in revoking his probation and sentencing

him to five years for a mere “probationary lapse” and he admitted his mistake.

Appellant’s Br. p. 3. And because Fugate admitted to the violation, the only issue before



                                             4
us involves the penalty, which was the five years that he was ordered to serve in the

DOC. Heaton, 984 N.E.2d at 616.

       As noted above, this was Fugate’s second violation of probation in this case.

Indeed, Fugate’s initial violation was based on the commission of battery, a new offense.

Appellant’s App. p. 25-31. Additionally, the present violation is based on a failed drug

test that showed Fugate had been using marijuana, which is also a criminal offense. Id. at

58-63. The second violation occurred within four months of the time that Fugate had

been released from the sanction that was imposed on the first violation.

       Fugate has had little success during his probationary periods and had difficulty

admitting that he has substance abuse issues. Id. at 17-18. Under these circumstances,

we cannot say that the trial court erred in revoking Fugate’s probation and ordering him

to serve five years of his previously suspended sentence. See Jenkins, (observing that in

light of the defendant’s current probation violation and his history of probation

violations, the trial court did not err in revoking the defendant’s probation and in ordering

him to execute the remaining portion of the suspended sentence).

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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