MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Oct 04 2018, 10:07 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brittany Erin Hoak,                                      October 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1094
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         10C02-1403-FA-26
                                                         10C02-1711-F5-300



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018                  Page 1 of 9
[1]   Brittany Hoak appeals the three-year sentence imposed by the trial court after

      she pleaded guilty to Level 5 Felony Possession of Methamphetamine,1 arguing

      that the sentence was inappropriate in light of the nature of the offense and her

      character. She simultaneously appeals the trial court’s revocation of her

      probation in a separate cause, arguing that revocation is unwarranted and that

      the imposition of a full suspended sentence is improper. Finding that the

      sentence is not inappropriate and no other error, we affirm.


                                                    Facts

[2]   Hoak has experienced significant hardships throughout her life. She has

      endured sexual and emotional abuse, has lost custody of her only son to her

      estranged mother, and has been diagnosed with multiple psychological

      disorders. Guilty Plea Tr. Def. Ex. A p. 4-8. Additionally, Hoak currently

      suffers from Spinal Stenosis, a ruptured disk in her neck, and a herniated disk in

      her lower back. Id. Hoak is a drug addict who has been in and out of the

      Indiana criminal justice system on multiple drug-related charges for many

      years, though she has yet to receive court-ordered substance abuse treatment.

      Id. at 9.




      1
          Ind. Code § 35-48-4-6.1(b)(2).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 2 of 9
[3]   On March 31, 2014, Hoak was charged with Class A felony dealing in

      methamphetamine and Class B felony possession of methamphetamine in

      Cause Number 10C02-1403-FA-26 (Cause FA-26).


[4]   On August 25, 2014, she entered into a plea agreement with the State in Cause

      FA-26. Pursuant to the agreement, she would plead guilty to the Class B felony

      possession charge, the State would dismiss the Class A felony dealing in

      methamphetamine charge, and she would be sentenced to ten years in the

      Department of Correction with four years suspended to strict probation. The

      terms of Hoak’s probation expressly state that she could not possess any

      controlled substances. Guilty Plea Tr. p. 10-12.


[5]   Hoak began her term of probation on May 12, 2017. On November 14, 2017,

      the Jeffersonville Police Department responded to a call and found Hoak at a

      motel. The police discovered methamphetamine on her person, which was a

      direct violation of her probation.


[6]   Shortly thereafter, the State charged Hoak with Level 6 felony possession of

      methamphetamine, Class C misdemeanor possession of paraphernalia, and

      Level 5 felony possession of methamphetamine in Cause Number 10C02-1711-

      F5-300 (Cause F5-300). On December 5, 2017, the State also filed a petition in

      Cause FA-26 to revoke Hoak’s probation based on these new charges.


[7]   On January 18, 2018, Hoak entered into a guilty plea agreement in Cause F5-

      300, pursuant to which she pleaded guilty to the Level 5 felony possession of

      methamphetamine charge in exchange for the dismissal of the other charges.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 3 of 9
      She also admitted to violating probation in Cause FA-26 because she had

      possessed a controlled substance. The plea agreement left the matter of

      sentencing up to the trial court’s discretion.


[8]   On April 9, 2018, the trial court sentenced Hoak in Cause F5-300 to three years

      of fixed imprisonment with the Department of Correction on the Level 5 felony

      possession of methamphetamine charge. It also revoked her probation in Cause

      FA-26 and imposed her remaining suspended sentence of 294 days. Sentencing

      Tr. p. 36-37. The trial court considered the aggravating factor of Hoak’s

      extensive prior criminal history and the mitigating factor of her abuse and

      trauma in arriving at its decision. Id. Hoak now appeals.2


                                  Discussion and Decision

[9]   Hoak presents two arguments on appeal: (1) the three-year sentence in Cause

      F5-300 is inappropriate in light of the nature of the offense and her character;

      and (2) the trial court improperly imposed her 294-day suspended sentence

      when it revoked her probation in Cause FA-26.




      2
          These two separate cases now come before this Court in this consolidated appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018        Page 4 of 9
                                      I. Appropriateness

[10]   We first address Hoak’s argument that the trial court inappropriately sentenced

       her to three years of fixed imprisonment in Cause F5-300. Specifically, Hoak

       argues that we should revise her sentence to a three-year, fully suspended

       sentence so long as she participates in the rehabilitative Recovery Works

       Program or a similar drug treatment program. She believes that further

       incarceration will only exacerbate her drug habits since she has yet to receive

       any substance abuse treatment.


[11]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Additionally, the defendant bears the burden of persuading us

       that her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[12]   The maximum sentence possible for committing a Level 5 felony conviction is

       six years and the minimum sentence is one year. Indiana Code § 35-50-2-6(b).

       The advisory sentence, which the trial court imposed in this case, is three years.

       Id.


[13]   First, as to the nature of the offense, Hoak pleaded guilty to possession of

       methamphetamine while on probation for pleading guilty to possession of

       methamphetamine. Hoak not only violated the express terms of probation, but


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 5 of 9
       she also pleaded guilty to a crime she had already committed in the past.

       Moreover, Hoak is a repeat offender who has a long criminal history involving

       the possession and distribution of controlled substances. Guilty Plea Tr. Def.

       Ex. A. p. 9-10. Specifically, she has multiple prior convictions for possession of

       methamphetamine. Id. We do not find that the nature of the offense renders the

       sentence inappropriate.


[14]   Second, as to the character of the offender, Hoak correctly states that she has

       yet to receive any court-ordered substance abuse treatment. Additionally, Hoak

       has endured significant obstacles throughout most of her life. We are not

       unaware of the grievous path on which Hoak has trekked up until this point.

       We recognize the hardships that come from addiction, sexual abuse, physical

       and emotional trauma, and all other difficulties Hoak has experienced in her

       life.


[15]   However, we do not find that the original three-year sentence was inappropriate

       under Indiana Appellate Rule 7(B). Hoak’s possession of methamphetamine

       conviction was egregious because she simultaneously violated the terms of

       probation and committed an offense of which she had previously been

       convicted in the past. In balancing that determination with the nature of Hoak’s

       character as a person in need of true substance abuse treatment, we cannot say

       that the trial court’s decision to impose the advisory three-year sentence was

       inappropriate. In sum, we will not revise Hoak’s sentence pursuant to Indiana

       Appellate Rule 7(B).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 6 of 9
[16]   We also take this moment to point out that despite myriad drug-related contacts

       with the criminal justice system over many years, Hoak was never ordered to

       complete a substance abuse treatment program. We encourage trial courts to

       consider assisting individuals struggling with substance abuse with

       rehabilitative measures.


                               II. Probation Revocation

[17]   We next address Hoak’s argument that the trial court improperly imposed her

       294-day suspended sentence when it revoked her probation in Cause FA-26.

       Specifically, Hoak argues that (1) the State failed to prove that she violated a

       term of her probation; and (2) the State’s imposition of the full balance of her

       previously suspended sentence as sanction for violating probation was

       inappropriate.


[18]   We will overturn a trial court’s decision to revoke probation and a trial court’s

       sentencing decision in a probation revocation proceeding only if the decisions

       are against the logic and effect of the facts and circumstances before it. Marsh v.

       State, 818 N.E.2d 143, 144 (Ind. Ct. App. 2004).


[19]   First, Hoak argues that the State failed to prove that she violated her probation.

       An Indiana court must follow a two-step process to revoke someone’s

       probation: (1) the court must make a factual determination that a violation of a

       condition of probation actually occurred; and (2) if a violation occurred, then

       the trial court must determine if the violation warrants revocation of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 7 of 9
       probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Thereafter, if a

       proper violation is found and revocation is appropriate, the court may properly

       order execution of all or part of the sentence that was suspended at the time of

       initial sentencing. Ind. Code § 35-38-2-3(h)(3).


[20]   It is clear from the record that Hoak violated a condition of her probation,

       namely, a prohibition on possessing controlled substances. Indeed, in her guilty

       plea agreement in Cause F5-300, she admitted that she possessed

       methamphetamine on November 14, 2017. Hoak does not contest this fact.

       Rather, Hoak argues that the State did not prove beyond a reasonable doubt

       that she actually violated the terms of her probation because at the guilty plea

       hearing, the State did not present any witnesses or exhibits.


[21]   It is well established that a probation revocation proceeding is not criminal but

       rather civil in nature, Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009),

       and consequently, there is no requirement to prove essential elements beyond a

       reasonable doubt. Instead, the State must prove the violation by a

       preponderance of the evidence. I.C. § 35-38-2-3(f). Here, Hoak’s admission that

       she possessed methamphetamine while on probation is sufficient evidence to

       support the trial court’s finding that she violated a condition of her probation.


[22]   Second, Hoak argues that imposing the full balance of her previously suspended

       sentence as a sanction for violating probation is inappropriate. Her argument is

       not persuasive. Indiana Code section 35-38-2-3(h)(3) plainly states that a court

       may reimpose all or part of a sentence that was suspended at the time of initial


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 8 of 9
       sentencing. Furthermore, we have held on numerous occasions that an

       imposition of the full balance of a previously suspended sentence as a sanction

       for violating probation is not improper. See, e.g., Castillo v. State, 67 N.E.3d 661,

       665 (Ind. Ct. App. 2017) (holding that trial court did not err when it ordered

       defendant to serve two and one-half years of his previously suspended sentence

       as a sanction for violating probation); see also I.C. § 35-38-2-3(h)(3) (providing

       that trial court may order execution of all or part of previously suspended

       sentence after revoking probation).


[23]   It appears that Hoak would like to have it both ways. She plainly admits to

       violating the terms of her probation so that she can receive a lighter sentence for

       pleading guilty in Cause F5-300, but she simultaneously does not want such

       evidence to be used to determine her sanction for violating the very same terms

       of her probation in Cause FA-26. In short, Hoak’s arguments are unavailing.


[24]   The judgments of the trial courts are affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018   Page 9 of 9
