MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Oct 22 2015, 6:05 am
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
Justin R. Wall                                           Gregory F. Zoeller
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth L. Collins,                                      October 22, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A04-1505-CR-510
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         35C01-9906-CF-27



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015       Page 1 of 7
[1]   In February of 2000, Appellant-Defendant Kenneth L. Collins pled guilty to

      Class B felony rape and Class B felony burglary with a deadly weapon. The

      trial court accepted Collins’s guilty plea and sentenced him to an aggregate term

      of thirty-six years, with twenty-six years executed in the Indiana Department of

      Correction (“DOC”) and the remaining ten years suspended to probation.

      Collins has since been released from the DOC and placed on probation. Since

      the time that Collins was released to probation, he has had his probation

      revoked on two separate occasions, not counting the revocation at issue in the

      instant appeal.


[2]   On December 31, 2014, Appellee-Plaintiff the State of Indiana (the “State”)

      filed a petition to revoke Collins’s probation, alleging that Collins had violated

      the terms of his probation by testing positive for oxycodone, noroxydcodone,

      morphine, and methamphetamine. Collins also admitted that he had used

      heroin. On March 16, 2015, the State filed another petition to revoke Collins’s

      probation, alleging that Collins had violated the terms of his probation by

      testing positive for morphine. Collins subsequently admitted the allegations set

      forth in both of the revocation petitions. After determining that Collins had in

      fact violated the terms of his probation, the trial court revoked Collins’s

      probation and ordered Collins to serve the remaining balance of his previously-

      suspended sentence in the DOC.


[3]   On appeal, Collins contends that the trial court abused its discretion in

      ordering him to serve the remaining balance of his previously-suspended ten-

      year sentence in the DOC. Concluding otherwise, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 2 of 7
                            Facts and Procedural History
[4]   On February 7, 2000, Collins pled guilty to Class B felony rape and Class B

      felony burglary with a deadly weapon. The trial court accepted Collins’s guilty

      plea and, on March 13, 2000, sentenced Collins to an aggregate term of thirty-

      six years, the last ten years of which were suspended to probation. After

      completing the executed portion of his sentence, Collins was released from the

      DOC and placed on probation.


[5]   On June 7, 2011, the State filed a petition to revoke Collins’s probation,

      alleging that Collins had violated the terms of his probation by refusing to

      submit to a drug screen on May 25, 2011, and testing positive for marijuana and

      methadone. On August 1, 2011, Collins admitted that he had committed the

      alleged violations and the trial court ordered Collins to serve 120 days of his

      previously suspended sentence. On May 31, 2013, the State filed a second

      petition to revoke Collins’s probation, alleging that Collins had tested positive

      for THC. On September 9, 2013, Collins admitted that he had committed the

      alleged violation and the trial court ordered Collins to serve one year of his

      previously suspended sentence.


[6]   On December 31, 2014, the State filed a third petition to revoke Collins’s

      probation, alleging that Collins had violated the terms of his probation by

      testing positive for oxycodone, noroxydcodone, morphine, and

      methamphetamine. The petition further alleged that Collins had also admitted

      that he had used heroin. While the third petition was pending, on March 16,


      Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 3 of 7
      2015, the State filed a fourth petition to revoke Collins’ probation, alleging that

      Collins had violated the terms of his probation by testing positive for morphine.


[7]   On May 18, 2015, Collins admitted the allegations set forth in both the third

      and fourth revocation petitions. After determining that Collins had in fact

      violated the terms of his probation, the trial court revoked Collins’s probation

      and ordered Collins to serve the remaining balance of his previously-suspended

      sentence in the DOC. This appeal follows.



                                 Discussion and Decision
[8]   Collins contends that the trial court abused its discretion in ordering him to

      serve the remaining balance of his previously suspended ten-year sentence in

      the DOC.


              Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled. The trial court
              determines the conditions of probation and may revoke
              probation if the conditions are violated. 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. Accordingly, a trial court’s sentencing
              decisions for probation violations are reviewable using the abuse
              of discretion standard. An abuse of discretion occurs where the
              decision is clearly against the logic and effect of the facts and
              circumstances.




      Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 4 of 7
      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks

      omitted).


[9]   Indiana Code section 35-38-2-3 provides, in relevant part, as follows:

              (a)      The court may revoke a person’s probation if:

                       (1)   the person has violated a condition of
                       probation during the probationary period; and

                       (2)    the petition to revoke probation is filed during
                       the probationary period….

                                                      ****

              (h)    If the court finds that the person has violated a condition
              at any time before termination of the period, and the petition to
              revoke is filed within the probationary period, the court may
              impose one (1) or more of the following sanctions:

                       (1)   Continue the person on probation, with or
                       without modifying or enlarging the conditions.

                       (2)   Extend the person’s probationary period for
                       not more than one (1) year beyond the original
                       probationary period.

                       (3)   Order execution of all or part of the sentence
                       that was suspended

              at the time of initial sentencing.


      The 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).




      Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 5 of 7
[10]   The record demonstrates that, to date, Collins has admitted to violating the

       terms of his probation on at least four separate occasions. The trial court

       ordered partial execution of Collins’s previously-suspended sentence following

       the first two violations. Collins did not refrain from committing additional

       violations and continued to violate the terms of his probation. In ordering

       Collins to serve the remaining balance of his previously-suspended ten-year

       sentence, following the third and fourth violations, the trial court stated:


               The Court looks at the past, and the past in this case is two
               petitions to revoke, the third was filed December 31st, and the
               fourth was filed March the 16th. Uh, I’ve tried. It would appear
               that you haven’t. The Court’s going to issue the remainder of the
               time.


       Tr. p. 9.


[11]   In arguing that the trial court abused its discretion in ordering him to serve the

       remainder of his suspended sentence, Collins claims that he became addicted to

       drugs and prescription medications after sustaining a work-related injury.

       Collins argues that the trial court should have imposed a lesser sentence

       because he has acknowledged his addiction, has requested help for his addition,

       and incarceration will not afford him the ability to seek the treatment he

       desperately needs. In making this argument, however, Collins is merely

       requesting this court to substitute our judgment for that of the trial court, which

       we will not do without a showing of abuse of the trial court’s discretion.

       Indiana Code section 35-38-2-3(h) provides that if the trial court determines that

       a person has violated the terms of their probation, the trial court may “[o]rder

       Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 6 of 7
       execution of all or part of the sentence that was suspended at the time of initial

       sentencing.” (Emphasis added). Thus, pursuant to the clear language of

       Indiana Code section 35-38-2-3(h), the trial court acted within its discretion in

       ordering execution of all of the remaining balance of Collins’s suspended

       sentence.


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


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1505-CR-510 | [October 22, 2015   Page 7 of 7
