MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 18 2018, 10:07 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Burgess,                                         July 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-208
        v.                                               Appeal from the
                                                         Henry Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kit C. Dean Crane, Judge.
                                                         Trial Court Cause No.
                                                         33C02-1402-FA-4



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018                      Page 1 of 5
[1]   Michael Burgess (“Burgess”) appeals his probation revocation, contending that

      the trial court abused its discretion when, after Burgess failed two drug screens

      and failed to comply with substance abuse treatment, it sentenced him to the

      Indiana Department of Correction (“DOC”) for the remainder of his

      previously-suspended sentence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 26, 2013, Burgess pleaded guilty to dealing in a schedule II-

      controlled substance, a Class B felony. He was sentenced to eighteen years in

      the DOC with four years suspended. Appellant’s App. Vol. 2 at 24-25. Just over

      a year after he started serving his sentence, Burgess filed a motion to modify his

      sentence, and on January 26, 2016, the trial court agreed to suspend Burgess’s

      remaining sentence to probation. Id. at 8, 9, 44. On June 29, 2017 and

      September 6, 2017, the probation department filed petitions to revoke Burgess’s

      probation because he tested positive for marijuana. Id. at 47-54. At the

      dispositional hearing, the State presented testimony of Kevin Moore

      (“Moore”), Burgess’s probation officer. Tr. Vol. II at 24, 27. Moore testified

      that his first appointment with Burgess was on February 17, 2016, and


              Since that time, I repeatedly tried to get the defendant to comply
              with substance abuse treatment at Meridian Services. In all
              honesty, I probably gave him longer than I should have before
              the violation was filed. I continued to advise him that if he didn’t
              comply, a violation would be filed. Not only did he not comply
              with Meridian Services, he tested positive on two drug screens.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018   Page 2 of 5
              Probation can only do so much, and we can’t do it for him. After
              a certain point, it’s – it’s clear that -- that the defendant is not a
              good candidate for probation, simply for the fact that he refused,
              repeatedly, to comply with the terms and conditions that were
              asked of him.


      Id. at 28.


[4]    Meridian Services, the center where Burgess was receiving treatment,

      indicated that Burgess was “[n]on-compliant (Risk for relapse is predicted):

      Inconsistent attendance in treatment, and not working in [sic] recovery.”

      Appellant’s App. Vol. 2 at 51. Burgess admitted to the violations of the conditions

      of his probation, and the trial court sentenced him to DOC for the remainder of

      his previously suspended sentence. Tr. Vol. II at 43. Burgess now appeals.


                                     Discussion and Decision
[5]   Burgess argues that the trial court abused its discretion when it ordered him to

      serve the remainder of his previously-suspended eighteen-year sentence.

      “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.

      Ct. App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “The

      trial court determines the conditions of probation and may revoke probation if

      the conditions are violated.” Id.; see also Ind. Code § 35-38-2-3(a). “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.”

      Prewitt, 878 N.E.2d at 188. “If this discretion were not afforded to trial courts


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018   Page 3 of 5
      and sentences were 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 probation violation determination for an abuse of discretion.

      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion

      occurs where the decision is clearly against the logic and effect of the facts and

      circumstances or when the trial court misinterprets the law.” Jackson, 6 N.E.3d

      at 1042.


[6]   Probation revocation is a two-step process. Id. “First, the trial court must make

      a factual determination that a violation of a condition of probation actually

      occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).

      “Second, if a violation is found, then the trial court must determine the

      appropriate sanctions for the violation.” Id. If a defendant is found to have

      violated probation, a trial court may (1) continue the defendant on probation;

      (2) extend the probationary period for not more than one year beyond the

      original period; or (3) order all or part of a previously-suspended sentence to be

      executed. Ind. Code § 35-38-2-3(g).


[7]   Under the terms of his probation, Burgess was not to purchase, possess, or

      consume any alcoholic beverage, intoxicating liquor, marijuana, drug, or

      controlled substance of any kind, unless legally prescribed to him. Tr. Vol. II at

      5. On August 24, 2017, a probation violation hearing was held regarding a

      positive drug screen that Burgess submitted to the Henry County Probation

      Department on June 14, 2017. The drug screen indicated that Burgess had

      used marijuana. The trial court ordered Burgess to submit to a random drug

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018   Page 4 of 5
       screen following the hearing, and Burgess admitted that he would likely fail the

       drug screen because he was “stressing.” Id. at 10. The drug screen collected

       was positive for marijuana.


[8]    Burgess was required to obtain a substance abuse evaluation and follow any

       recommended treatment as a term of his probation. Id. at 19. He admitted that

       he stopped attending Meridian Services because he did not have health

       insurance and stated that he started attending Anchor Behavioral Counseling.

       Id. at 20. He did not complete his treatment at either agency. Id. at 21.

       Because Burgess failed to comply with the terms of his probation, failed to

       refrain from the use of illegal drugs, and failed to comply with substance abuse

       treatment, the trial court revoked Burgess’s suspended sentence. The trial

       court’s decision ordering Burgess to serve the remainder of his sentence at the

       Indiana Department of Correction was not clearly against the logic and effect of

       the facts and circumstance before it, and the trial court did not abuse its

       discretion in revoking Burgess’s probation.


[9]    Affirmed.


[10]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018   Page 5 of 5
