MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Apr 24 2017, 9:32 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank E. Suggs, Jr.,                                     April 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1611-CR-2685
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D03-1104-FB-1355



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2685 | April 24, 2017             Page 1 of 5
                                          Case Summary
      Frank E. Suggs, Jr., contends that the trial court abused its discretion in

      revoking his probation for leaving a sober-living facility. He claims that he only

      left the facility because it had bed bugs. Because the record shows that the trial

      court gave Suggs time to find another facility or to qualify for home detention,

      and five months later Suggs had done neither, we affirm the revocation of his

      probation.



                            Facts and Procedural History
[1]   In 2011, Suggs pled guilty to Class B felony criminal confinement, and the trial

      court sentenced him to sixteen years, with six years executed (as a direct

      commitment to Vigo County Community Corrections) and ten years suspended

      to probation. In 2012, the State filed a petition to revoke Suggs’s community-

      corrections placement and probation, and the trial court ordered him to serve

      the balance of his six-year executed sentence in the Department of Correction

      (still with ten years of probation).

[2]   In February 2016, the State filed another notice of probation violation. Suggs

      admitted violating his probation, and the trial court ordered him to complete

      the Vigo County Jail Alcohol and Drug Linkage Program and a ninety-day stay

      in a sober-living facility.

[3]   After completing the jail-linkage program, Suggs entered Freebirds, a sober-

      living facility, on May 13, 2016. Six days later, Suggs left the facility to attend

      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2685 | April 24, 2017   Page 2 of 5
      his father’s funeral and never returned. After his father’s funeral, Suggs told his

      probation officer that there were bed bugs at Freebirds. But Suggs did not tell

      the director at Freebirds about the bed bugs before leaving.


[4]   On May 26, 2016, the State filed a notice of probation violation in which it

      alleged that Suggs violated his probation because he:

              [F]ailed to successfully complete ninety days at a sober living
              facility as ordered. Defendant entered Freebirds Solution Center
              on May 13, 2016 but left said facility on May 19, 2016. Note:
              defendant’s father passed away and defendant did not return after
              funeral. He has been reporting daily to Adult Probation.


      Appellant’s App. Vol. II p. 122 (formatting altered). While the notice of

      probation violation was pending, the trial court gave Suggs a chance to enter

      another sober-living facility or to qualify for home detention.

[5]   Suggs’s probation-revocation hearing was held in October 2016. Suggs’s

      probation officer, Diana Frazier, testified that the trial court was “generous” to

      give Suggs time to get into another facility “but he never . . . entered any” and

      that the court “also gave him the opportunity to see . . . if he could afford home

      detention, but he never came up with the money for that either.” Tr. Vol. II p.

      13. Suggs testified that he tried to get into another facility, but “the majority”

      were full, one would not let him in because of his criminal record, and “the

      courts” would not let him go to a facility called “Club Soda.” Id. at 17, 22.

      Suggs said although he was working, he could not afford home detention




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      because he had to pay child support for three of his children. At the conclusion

      of the hearing, the trial court found that Suggs violated his probation:

              [T]he Court’s aware that there was an issue back in May—not
              only with Freebirds but with . . . Club Soda as well, but those
              were resolved within about thirty (30) days. We’re five (5)
              months down the road and Mr. Suggs still hasn’t done anything.
              He hasn’t gone . . . to a sober living facility in the last five (5)
              months. I mean, I’m confident, because the amount of hearings
              we’ve had with the Chief Probation Officer here that Ms. Frazier
              has tried to do everything within her powers to try to get Mr.
              Suggs to comply. She’s afforded him multiple opportunities to
              enroll. She has afforded him alternatives—home detention[.]


      Id. at 24-25. Accordingly, the court revoked Suggs’s probation and sentenced

      him to two-and-a-half years of his previously suspended sentence in the DOC,

      one year of formal probation, and the balance to informal probation. Id. at 25;

      Appellant’s App. Vol. II p. 132.

[6]   Suggs now appeals the revocation of his probation.



                                 Discussion and Decision
[7]   Probation revocation is a two-step process. First, the trial court must determine

      that a violation of a condition of probation actually occurred. Woods v. State,

      892 N.E.2d 637, 640 (Ind. 2008). Second, the court must determine if the

      violation warrants revocation of probation. Id. The decision to revoke

      probation lies within the sound discretion of the trial court, and if there is

      substantial evidence of probative value to support the trial court’s decision that

      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2685 | April 24, 2017   Page 4 of 5
       a defendant has violated a term of probation, the reviewing court will affirm its

       decision to revoke probation. Id. at 639-40.


[8]    Suggs concedes that he violated his probation. Appellant’s Br. p. 7. He argues,

       however, that his violation does not warrant revocation because of “the unique

       circumstances he found himself in,” i.e., bed bugs at Freebirds. Id. at 8.

       Instead of revoking his probation, he claims that the trial court should have

       “assist[ed] [him] in finding a different treatment facility that would accept him.”

       Id. at 6.


[9]    But that is essentially what the trial court did. While the notice of probation

       violation was pending, the trial court gave Suggs time to find another sober-

       living facility or to qualify for home detention. This was a “free pass” from the

       May 2016 bed-bugs situation that Suggs claims forced him to leave Freebirds

       without first seeking permission to do so. But five months later, Suggs had

       neither found another sober-living facility nor qualified for home detention. As

       the trial court recognized, Suggs had substantial help from his probation officer

       during this time yet still did not take advantage of the court’s leniency. We

       therefore affirm the revocation of Suggs’s probation.

[10]   Affirmed.

       Bailey, J., and Robb, J., concur.




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