      MEMORANDUM DECISION
                                                                       Jan 30 2015, 11:03 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      John P. Wilson                                            Gregory F. Zoeller
      Wilson & Wilson                                           Attorney General of Indiana
      Greenwood, Indiana
                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Matthew R. Eden,                                         January 30, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               41A05-1405-CR-211
              v.                                               Appeal from the Johnson Circuit
                                                               Court
      State of Indiana,
      Appellee-Plaintiff




      Pyle, Judge


                                         Statement of the Case
[1]   Appellant/Defendant, Matthew R. Eden (“Eden”), appeals the trial court’s

      revocation of his probation and imposition of his previously suspended sentence

      after he violated his probation for his conviction of Class C felony possession of

      Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015   Page 1 of 7
      a controlled substance. On appeal, Eden argues that the trial court should have

      allowed him to serve the remainder of his sentence on work release because he

      had completed a majority of his probation successfully, was gainfully

      employed, and had a wife and children to support. We conclude that the trial

      court did not abuse its discretion in ordering Eden to serve his previously

      suspended sentence where Eden violated his probation by consuming drugs and

      failed to take advantage of the alternatives to incarceration granted to him in

      the past.


[2]   We affirm.


                                                           Issue
[3]   Whether the trial court abused its discretion in ordering Eden to serve his
      previously suspended sentence after he violated his probation.

                                                           Facts
[4]   On September 13, 2010, Eden pled guilty to Class C felony possession of a

      controlled substance. On January 28, 2011, the trial court entered a judgment

      of conviction and sentenced him to four years suspended to probation with

      home detention.1 The trial court also ordered Eden to attend some sort of

      outpatient treatment program with Johnson County Alcohol and Drug

      Services.




      1
          Eden did not include a copy of the trial court’s sentencing order in his Appellant’s Appendix.


      Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015               Page 2 of 7
[5]   Shortly thereafter, Eden requested a modification of his sentence. On July 18,

      2011, the trial court granted the modification, stayed the home detention

      component of Eden’s sentence, and placed him on probation with an added

      condition of ninety days of daily reporting and payment of outstanding

      Community Corrections fees. Thereafter, on January 12, 2012, the trial court

      held a modification status hearing and waived Eden’s home detention

      requirement.


[6]   Subsequently, on August 27, 2013, the Johnson County Probation Department

      filed an “Original” petition to revoke Eden’s probation.2 (App. 13). On

      November 21, 2013, the trial court held an initial hearing, and Eden denied

      violating the conditions of his probation. The trial court then set the fact-

      finding hearing for February 10, 2014.


[7]   On February 10, 2014, the State and Eden appeared for the hearing. Upon

      Eden’s motion for a continuance, the trial court reset the hearing for April 21,

      2014.


[8]   In the meantime, on February 19, 2014, the Johnson County Probation

      Department filed an amended petition to revoke Eden’s probation, alleging that

      Eden had failed to: report to the probation department at any time; submit to a

      substance test within a reasonable time period and pay the associated fees;




      2
        Eden did not include a copy of this original revocation petition in his Appendix; therefore, the specific
      allegations of probation violations are not in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015               Page 3 of 7
       follow the rules set forth by community corrections for his program; obtain a

       G.E.D.; and abstain from consuming or possessing any intoxicating beverage or

       any drug not prescribed by a physician. The probable cause affidavit attached

       to the amended petition alleges that Eden had: overdosed on heroin on

       February 10 and February 12, 2014 and required hospitalization; failed to

       appear for a drug screen on February 12, 2014; and admitted to his probation

       officer that he had overdosed on heroin twice in one week.3


[9]    During a hearing on March 3, 2014, Eden was “sworn” and waived a formal

       initial hearing on the amended revocation petition. 4 (App. 15). On April 10,

       2014, the trial court held another hearing. At the beginning of the hearing, the

       trial court stated that “having found that [Eden was] in violation of the terms

       and conditions of [his] probation[,]” it would therefore “entertain any

       sentencing evidence [Eden] wish[ed] to present[.]” (Tr. 1). Eden then testified

       that he was employed and had children that depended on him. As a result, he

       requested to be placed on work release so that he could provide for his family.


[10]   At the conclusion of the sentencing hearing, the trial court stated that it was the

       court’s “continuing conclusion that [Eden] ha[d] a drug issue[,]” and it ordered

       Eden to serve the remainder of his previously suspended sentence in the




       3
        Eden included the probable cause affidavit in his Appendix and makes no argument that it was not
       considered by the trial court as part of his probation revocation proceeding.


       4
         In his Notice of Appeal, Eden did not request that this March 2014 hearing be transcribed; thus, it is not
       included in the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015              Page 4 of 7
       Department of Correction. (Tr. 5). However, the trial court recommended that

       Eden be placed in a therapeutic program, “Purposeful Incarceration[,]” and it

       stated that it would consider a modification of Eden’s sentence upon his

       completion of the program. (App. 18). Eden now appeals.


                                                   Decision
[11]   On appeal, Eden does not dispute the revocation of his probation; instead, he

       argues that the trial court abused its discretion in ordering him to serve his

       previously suspended sentence because he had completed a majority of his

       probation, was gainfully employed, and had a wife and children.


[12]   Pursuant to INDIANA CODE § 35-38-2-3(g),


               if the court finds that the person has violated a condition [of
               probation] 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.


[13]   As our Indiana Supreme Court has noted, “[p]robation is a matter of grace left

       to trial court discretion, not a right to which a criminal defendant is entitled.”

       Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015   Page 5 of 7
       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “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” upon a violation

       of that probation. Id. “If this discretion were not afforded to trial courts and

       sentences scrutinized too severely on appeal, trial judges might be less inclined

       to order probation to future defendants. Id. Accordingly, we review a trial

       court’s sentencing decision in a probation revocation proceeding for an abuse of

       discretion. Id. A trial court has abused its discretion where its decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.


[14]   Here, Eden was placed on probation after being convicted for possession of a

       controlled substance. Despite being placed in a drug treatment program during

       probation, Eden overdosed on heroin twice in one week. As a result, the trial

       court explained in its sentencing statement that “[u]ltimately it is my continuing

       conclusion that you have a drug issue.” (Tr. 5). Moreover, as the State noted

       during the hearing, Eden had already been shown leniency in the past when the

       trial court modified his original sentence and allowed him to serve time on

       probation. Yet, the trial court also noted in its sentencing order that Eden could

       potentially request another modification after completing a therapeutic program

       in the Department of Correction. In light of all of these factors, we conclude

       that the trial court did not abuse its discretion in ordering Eden to serve the

       remainder of his previously suspended sentence.


[15]




       Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015   Page 6 of 7
[16]   Affirmed.


       Barnes, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1405-CR-211 | January 30, 2015   Page 7 of 7
