MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 13 2018, 10:15 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
David W. Stone, IV                                      Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dominique Quinn Brisker,                                December 13, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1397
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark K. Dudley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C06-1302-FB-353



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018             Page 1 of 7
                                       Statement of the Case

[1]   Dominique Brisker (“Brisker”) appeals the trial court’s order revoking his

      probation and ordering him to serve his previously suspended four-year

      sentence. Finding no abuse of the trial court’s discretion, we affirm the trial

      court’s judgment.


[2]   We affirm.


                                                    Issues

                   1. Whether there is sufficient evidence to support the
                      revocation of Brisker’s probation.

                   2. Whether the trial court abused its discretion by ordering
                      Brisker to serve his previously suspended sentence.

                                                     Facts

[3]   In November 2013, Brisker pled guilty to Class B felony unlawful possession of

      a firearm by a serious violent felon. The trial court sentenced him to ten (10)

      years with four (4) years to be served in the Department of Correction

      (“DOC”), two (2) years at the Madison County Work Release Center, and four

      (4) years suspended to probation. Pursuant to the terms and conditions of his

      probation, Brisker was ordered, among other things, to “not knowingly

      associate with any person who has been convicted of a felony, except for just

      cause[.]” (App. 74). He was also ordered to comply with certain additional

      special terms, including the following:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018   Page 2 of 7
              (A) Successful completion of work release.

              (B) Within 60 days, defendant ordered to obtain a substance
              abuse evaluation at an accredited facility approved by the
              Probation Department with full compliance with
              recommendations including inpatient treatment, if suggested, and
              submit written proof of compliance to Probation Department;

              (C) Defendant ordered to totally abstain from the use of alcoholic
              beverages and/or illicit drugs. On three (3) hours notice from the
              Probation Department, defendant ordered to submit to random
              urine and/or chemical screens, and be financially responsible for
              said tests;

              (D) Defendant ordered to find and maintain employment of
              twenty-five (25) hours per week. Defendant shall provide written
              verification of compliance to the Probation Department.
              Defendant shall not change employment without prior written
              approval of the Probation Department. In the event the
              defendant becomes unemployed during period of probation,
              defendant to successfully participate in a job seeking skills
              program approved by the Court and/or Probation Department.

      (App. 71-72).


[4]   In October 2016, the State filed a notice of violation of suspended sentence.

      After a hearing, the trial court found that Brisker had violated his work release

      when his whereabouts were unknown on two occasions; he had failed to meet

      his financial obligations; and he had failed to successfully complete work

      release. The trial court ordered Brisker to serve two months in the Madison

      County Detention Center and to return to work release thereafter.


[5]   In November 2017, the State filed a second notice of violation of suspended

      sentence. This notice read as follows:




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018   Page 3 of 7
              (a) Not to violate the laws of Indiana or the U.S. and failure to
              behave well in society: On/about 11/01/17, you are alleged to
              have committed the following new criminal offense(s): Ct. 1:
              Unlawful Possession of a Firearm by a Serious Violent Felon,
              Level 4 Felony; and Ct II: Pointing a Firearm, Level 6 Felony, as
              filed in Madison County Circuit Court VI under Cause Number
              48C06-1711-F4-002743;

              (b) Failed to obtain a substance abuse evaluation at a treatment
              facility approved by probation within 30 days of
              sentencing/release, comply with treatment recommendations,
              and provide written verification of successful completion of said
              program to the probation department;

              (c) Failed to maintain employment and/or verify employment to
              probation department; and

              (d) On or about 11/01/17, the defendant failed to not knowingly
              associate with any person who has been convicted of a felony, to
              wit: Deonta Anderson and Malachi Carter.

      (App. 129). A bench warrant was issued, and Brisker was arrested in

      Minnesota in December 2017.


[6]   The trial court held an evidentiary hearing over three days. It found that

      Brisker had violated the terms of his probation when he failed to obtain a

      substance abuse evaluation and successfully complete the recommendations;

      failed to maintain employment or verify employment; and avoid associating

      with known felons.1 The trial court then revoked Brisker’s probation and




      1
       The trial court determined that the State had not proven the allegation that Brisker engaged in new criminal
      activity by possessing a firearm and pointing a firearm at another person.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018                 Page 4 of 7
      ordered him to serve his previously suspended four-year sentence. Brisker now

      appeals.


                                                  Decision

[7]   Brisker argues that: (1) there is insufficient evidence to support the revocation of

      his probation; and (2) the trial court abused its discretion when it ordered him

      to serve his previously suspended four-year sentence. We address each of his

      contentions in turn.


      1. Probation Revocation


[8]   Brisker’s first contention is that there is insufficient evidence to support the trial

      court’s finding that he violated a condition of probation by associating with

      known felons. “Probation is a matter of grace left to trial court discretion, not a

      right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d

      184, 188 (Ind. 2007). A probation revocation hearing is civil in nature, and the

      alleged violation need be proven only by a preponderance of the evidence.

      Pittman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. It is

      within the trial court’s discretion to determine the conditions of probation and

      to revoke probation if those conditions are violated. Heaton v. State, 984 N.E.2d

      614, 616 (Ind. 2013). We review a trial court’s probation violation

      determination for an abuse of discretion. Id. 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. Id. Further, the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018   Page 5 of 7
       violation of a single condition of probation is sufficient to revoke probation.

       Pittman, 749 N.E.2d at 559.


[9]    Here, Brisker challenges only one of his three probation violations. Specifically,

       he argues that the trial court abused its discretion by finding that he associated

       with felons. We need not review Brisker’s challenge to one of his probation

       violations because the trial court found two other probation violations. As

       noted above, evidence of a single probation violation is sufficient to sustain a

       revocation of probation. See Pittman, 749 N.E.2d at 559 (noting that probation

       can be revoked based on a single violation); I.C. § 35-38-2-3(h) (authorizing the

       trial court to revoke a defendant’s probation if it finds that the person has

       violated a condition of probation at any time before termination of the period).

       Because the trial court found that Brisker had violated three conditions of his

       probation, two of which are unchallenged by Brisker, we affirm the trial court’s

       ultimate decision to revoke his probation.


       2. Order to Serve Suspended Sentence


[10]   Brisker also argues that the trial court abused its discretion when it ordered him

       to serve his previously suspended four-year sentence. Once a trial court has

       exercised its grace by ordering probation rather than incarceration, it should

       have considerable leeway in deciding how to proceed when the conditions of

       probation are violated. Prewitt, 878 N.E.2d at 188. If this discretion were not

       afforded to trial courts and sentences were scrutinized too severely on appeal,

       trial courts might be less inclined to order probation. Id. Accordingly, a trial


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018   Page 6 of 7
       court’s sentencing decision for a probation violation is reviewable for an abuse

       of discretion. Id. An abuse of discretion occurs when the trial court’s decision

       is clearly against the logic and effect of the facts and circumstances. Id. After

       the trial court has determined that a probationer has violated probation, the trial

       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.

       IND. CODE § 35-38-2-3(h).


[11]   The record reveals that the trial court had ample basis for its decision to revoke

       all four years of Brisker’s previously suspended sentence. Significantly, Brisker

       violated multiple conditions of his probation. Additionally, as the trial court

       noted, this was Brisker’s second violation under this cause number. The trial

       court’s decision is supported by the record and not clearly against the logic and

       effect of the facts and circumstances before it. Accordingly, the trial court was

       well within its discretion to order Brisker to serve the entirety of his previously

       suspended sentence upon finding that he had violated the terms of his

       probation.


[12]   Affirmed.


       Najam, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018   Page 7 of 7
