 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any                               Jul 03 2013, 7:05 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:

BRYAN E. BARRETT                                    GREGORY F. ZOELLER
Rush County Public Defender’s Office                Attorney General of Indiana
Rushville, Indiana
                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

WESLEY CASHDOLLAR,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 70A01-1204-CR-139
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                       APPEAL FROM THE RUSH SUPERIOR COURT
                          The Honorable David E. Northam, Judge
                              Cause No. 70D01-0307-FA-228



                                           July 3, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Wesley Cashdollar (“Cashdollar”) appeals the Rush Superior Court’s revocation

of his probation. Cashdollar argues that the trial court abused its discretion when it

ordered Cashdollar to serve seventy-one months executed after Cashdollar violated the

terms of his probation.

       We affirm.

                              Facts and Procedural History

       On March 17, 2005, Cashdollar pleaded guilty to Class B felony dealing in

cocaine. As part of the plea agreement, the State and Cashdollar agreed that Cashdollar

would serve a ten-year sentence and that the two additional felony charges of dealing

cocaine would be dismissed. On April 20, 2005, when Cashdollar failed to appear at his

sentencing hearing, the trial court held him in contempt and issued a warrant for his

arrest. On May 17, 2005, the State filed a Motion to Vacate Plea Recommendation and

to Set Jury Trial. The trial court granted the motion.

       Ten days before the rescheduled trial, on May 6, 2009, Cashdollar again pleaded

guilty to Class B felony dealing in cocaine. The trial court sentenced him to twelve years

in the Indiana Department of Correction. The plea agreement provided that the State

would agree to a sentence modification and suspension of the remainder of the sentence

to probation after Cashdollar had completed six years’ incarceration which, with credit

for good behavior, would amount to three years of incarceration.

       On April 29, 2011, Cashdollar filed a Petition for Sentence Modification. After a

hearing on the petition, the trial court issued a July 7, 2011 order suspending the

remainder of Cashdollar’s sentence to probation. The order included a special condition


                                             2	  
that Cashdollar complete a drug and alcohol rehabilitation program with Certified

Counseling Services, Inc. (“CCS”).

                                                      Cashdollar began the rehabilitation program at CCS on July 7, 2011. Not quite

three months later, on September 29, 2011, Ron McKiernan, the President of CCS,

reported to the Rush County Probation Department that Cashdollar had admitted to using

Opana, an opiate, and, thus, had failed to comply with CCS’s rehabilitation program

requirements.1 Thereafter, Mark Fields of the Rush County Probation Department filed a

Verified Petition of Probation Violation and on October 11, 2011, Cashdollar was

arrested for the probation violation.

                                                      On November 7, 2011, Cashdollar and the State entered into a plea agreement

calling for Cashdollar to serve a three-year sentence. In the agreement, Cashdollar

admitted that he had violated the terms of his probation. The trial court, however, voiced

“serious reservations” about the agreement. Appellant’s App. p. 93. On January 20,

2012, the State filed a Motion to Withdraw Plea Agreement and Set Adjudicatory

Hearing. The trial court granted the motion and held the adjudicatory hearing on the

petition on March 2, 2012. At the hearing, Cashdollar admitted leaving CCS’s recovery

program but denied the use of drugs.

                                                      Cashdollar asked the court to place him in Lighthouse Recovery Center for

treatment or to allow him to serve a combination of executed time and placement for

treatment. Instead, the trial court revoked Cashdollar’s probation and sentenced him to


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  On September 28, 2011, approximately six weeks after entering the program at CCS, Cashdollar
admitted to a CCS employee that he had used Opana, a controlled substance forbidden by the recovery
program. Cashdollar permanently left CCS that night.
                                                                                                                                                                                                                                   3	  
seventy-one months executed at the Indiana Department of Correction with credit for 456

days. Cashdollar now appeals.

                                 Discussion and Decision

       Cashdollar argues that the Rush Superior Court abused its discretion when it

sentenced Cashdollar to the entire seventy-one month suspended sentence because the

sentence was unsupported by a “sufficient legal or factual basis.” Appellant’s Br. at 3.

We disagree.

       Probation is “a matter of grace left to trial court discretion.” Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). It is a “conditional liberty” of a criminal defendant, rather

than a right. Black v. Romano, 471 U.S. 606, 610 (1985); Braxton v. State, 651 N.E.2d

268, 269 (Ind. 1995). Accordingly, pursuant to Indiana Code section 35-38-2-3, a trial

court may, upon a defendant’s violation of the terms of his probation, 1) continue the

original probation sentence; 2) extend the probationary period for no longer than one year

beyond the original period; and/or 3) order the execution of all or part of a previously

suspended sentence. A criminal defendant may “appeal the terms of a sentence ordered

to be served in a probation revocation proceeding that differ from those terms originally

imposed.” Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004).

       We review a trial court’s decision to revoke probation for abuse of discretion,

considering only that evidence which is most favorable to the trial court’s judgment.

Prewitt, 878 N.E.2d at 188; Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). A trial

court abuses its discretion when its decision “is clearly against the logic and effect of the

facts and circumstances.” Prewitt, 878 N.E.2d at 188. Upon review, we neither assess the


                                             4	  
credibility of the witnesses nor reweigh the evidence.                                                                                                                                                                                     Woods, 892 N.E.2d at 639.

Further, we do not review the appropriateness of the original sentence imposed on the

defendant. Johnson v. State, 692 N.E.2d 485, 488 (Ind. Ct. App. 1998).

                                                      While, at his probation revocation hearing, Cashdollar admitted only that he

violated the terms of his probation and denied using Opana, CCS President Ron

McKiernan had previously reported that Cashdollar admitted using Opana. Cashdollar

claims, however, that the trial court “did not properly take into account the facts of his

case and illegally concluded that it had no other choice but to sentence [Cashdollar] to the

remaining suspended time.” Appellant’s Br. at 12. Cashdollar points out that he “has

been attempting to better his life and his personal situation.” Appellant’s Br. at 14. He

further emphasizes that his probation violation did not involve the commission of a new

crime, but rather, the desertion of “a rehabilitation center that he believed was not

adequate for his individual and spiritual needs, in addition to his well-being.”

Appellant’s Br. at 13.

                                                      We applaud Cashdollar for seeking to improve his life. However, we cannot say

that the trial court's revocation of Cashdollar’s probation defies logic and the effect of

facts and circumstances before the court. Cashdollar agreed to comply with the terms of

his probation, including the condition that he successfully complete the rehabilitation

program at CCS. Cashdollar violated that term when he left CCS before completion of

the program, approximately two months after the trial court had modified his sentence to

probation.2

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  In Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans denied, this court observed that even
one violation of a probation condition justifies the trial court’s decision to revoke probation.
                                                                                                                                                                                                                                   5	  
       Upon finding that Cashdollar violated the terms of his probation, the trial court

properly looked to Indiana’s probation revocation statute to determine the range of

consequences that would follow. See Ind. Code § 35-38-2-3(g). This statute gives the

trial court broad discretion to order execution of all or part of Cashdollar’s suspended

sentence.

       While Cashdollar could possibly benefit from the rehabilitation program at

Lighthouse Recovery Center he put forward to the trial court as an alternative sentencing

placement, Indiana statute does not require the trial court to seek out alternatives other

than incarceration for a defendant who fails to comply with his probation terms. As to

Cashdollar’s denial that he used the opiate Opana before he left CCS, it is important to

remember that we do not reweigh evidence or assess the credibility of witnesses. For

these reasons, we conclude that the trial court acted within its discretion when it revoked

Cashdollar’s probation and ordered him to serve seventy-one months executed in the

Department of Correction.

                                       Conclusion

       The trial court did not abuse its discretion when it revoked Cashdollar’s probation

and ordered him to serve seventy-one months in the Department of Correction.

       Affirmed.

BAKER, J., and MAY, J., concur.

	  




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