      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D), this                             Aug 06 2018, 8:50 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                             CLERK
                                                                               Indiana Supreme Court
      purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                                    and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stanley L. Campbell                                       Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                       Attorney General of Indiana

                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Andrea Brown,                                            August 6, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-30
              v.                                               Appeal from the Allen Superior
                                                               Court

      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff.                                      Judge

                                                               Trial Court Cause No.
                                                               02D04-1612-F6-1345



      Darden, Senior Judge.


                                       Statement of the Case
[1]   Appellant Andrea Brown appeals the trial court’s imposition of her previously

      suspended sentence following the revocation of her probation. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018                     Page 1 of 6
                                                     Issue
[2]   Brown presents one issue for our review, which we restate as: whether the trial

      court abused its discretion by ordering Brown to serve her previously suspended

      sentence.


                                   Facts and Procedural History
[3]   On December 8, 2016, Brown was found by police officers in a car with an

      unconscious male who had overdosed on drugs. Inside the vehicle, which

      belonged to Brown, police located a used syringe and a glass smoking pipe

      containing residue of what was later confirmed to be marijuana. Four

      additional syringes were found in Brown’s purse. Brown told the officers she,

      the male, and another female had come to town to purchase drugs. Based on

      this incident, Brown was charged with unlawful possession of a syringe, a Level
                    1                                                                2
      6 felony; possession of marijuana, a Class B misdemeanor; and possession of
                                                         3
      paraphernalia, a Class C misdemeanor. On June 29, 2017, pursuant to a plea

      agreement, Brown pleaded guilty to unlawful possession of a syringe, and the

      State agreed to dismiss the remaining two charges. At sentencing, Brown was

      sentenced to one year and 183 days, all suspended to probation.




      1
          Ind. Code § 16-42-19-18 (2015).
      2
          Ind. Code § 35-48-4-11 (2014).
      3
          Ind. Code § 35-48-4-8.3 (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018       Page 2 of 6
[4]   Not quite three months thereafter, on September 21, 2017, the State filed a

      verified petition for revocation of probation alleging that Brown had violated

      her probation by committing additional criminal offenses, specifically

      possession of a narcotic drug and unlawful possession of a syringe, both Level 6

      felonies. At a hearing on the State’s petition on October 16, 2017, Brown

      admitted the violation. The trial court took her admission under advisement

      and placed her in the Drug Court Program. Upon Brown’s successful

      completion of the program, the State agreed to dismiss the new charges and

      show a satisfactory release from probation in the present case. Pursuant to the

      Drug Court Program participation agreement that Brown signed upon entering

      the program, she was required to successfully attend and complete all treatment

      programs, refrain from possessing, ingesting, using, selling, or distributing any

      illegal drugs, alcoholic beverages, or paraphernalia, and obey all laws and

      maintain good behavior.


[5]   On November 6, 2017, Brown’s Drug Court Program case manager filed a

      verified petition to terminate Brown’s participation in the program. The

      petition alleged that Brown had violated the terms and conditions of the

      program by using heroin while residing at the inpatient treatment facility and

      had been found in possession of urine or a look-a-like substance to be used to

      interfere with a urine screen. Following a hearing where Brown admitted to the

      violations, the court terminated Brown from the Drug Court Program. The

      State then filed a second verified petition for revocation of probation based on

      Brown’s failure to successfully complete the Drug Court Program. After


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018   Page 3 of 6
      conducting a hearing, the trial court found Brown violated her probation,

      revoked her probation, and ordered her to serve her suspended sentence in the

      Indiana Department of Correction. This appeal ensued.


                                   Discussion and Decision
[6]   Brown contends the trial court abused its discretion when, upon revoking her

      probation, it ordered her to serve the entirety of her suspended sentence. In

      support of her argument for leniency, she points to the fact that this is her first

      adult felony conviction and that she accepted responsibility for her actions.


[7]   A defendant is not entitled to serve a sentence on probation; rather, such

      placement is a matter of grace and a conditional liberty that is a favor, not a

      right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.

      Further, probation is a criminal sanction wherein a convicted defendant

      specifically agrees to accept conditions upon her behavior in lieu of

      imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),

      trans. denied. These restrictions are designed to ensure that the probation serves

      as a period of genuine rehabilitation and that the public is not harmed by a

      probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148

      (Ind. Ct. App. 2005).


[8]   At the time of Brown’s violations, Indiana Code section 35-38-2-3(h) (2015)

      provided that if the court finds a violation of a condition of probation, it may:

      (1) continue the person on probation, with or without modifying the conditions;

      (2) extend the person’s probationary period for not more than one year; and/or

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018   Page 4 of 6
       (3) order execution of all or part of the sentence that was suspended at the time of initial

       sentencing. (Emphasis added). A trial court’s sentencing decisions for probation

       violations are reviewed for an abuse of discretion. Wilkerson v. State, 918

       N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse of discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[9]    Brown had been abusing drugs for over eight years and was involved in a

       dangerous drug situation when she was arrested on the current charges. The

       trial court afforded her an opportunity to avoid incarceration altogether by

       giving her a completely suspended sentence, for which she accepted probation

       and agreed to limitations on her behavior. However, in less than three months,

       Brown was charged with two additional Level 6 felony drug charges and was

       facing a probation violation. Rather than revoking Brown’s probation as it

       could have done, the court again generously allowed her to participate in

       inpatient treatment through the Drug Court Program. Completion of the

       program would, presumably, have meant Brown was drug free but also would

       have obtained for her dismissal of the new charges and satisfactory release from

       probation in the present case. Yet, Brown went to the inpatient facility on

       October 27, 2017, and, just three days later on October 30, 2017, squandered

       the opportunity by using heroin at the facility as well as using another

       individual’s urine in order to pass a urine drug screen.


[10]   Brown has repeatedly demonstrated her unwillingness to comply with the

       conditions of her probation and to conform her behavior to lead a law-abiding

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018        Page 5 of 6
       life, even when confined to an inpatient facility. Within four months of

       pleading to a felony drug offense, she had violated her probation twice and had

       accumulated two new felony drug offenses. Moreover, she failed to take

       advantage of a second opportunity—Brown informed the court she had

       previously been through treatment, after which she had remained “clean” for

       twenty-two months—to change her behavior and become drug free when the

       court afforded her leniency in her initial transgressions. Tr. p. 28. Considering

       the number and serious nature of Brown’s violations within the first few months

       of her probationary period, we find nothing to suggest that she will comply with

       probation conditions or facility rules in the future.


                                                Conclusion
[11]   For the reasons stated, we conclude the trial court properly exercised its

       discretion in ordering Brown to serve her previously suspended sentence upon

       revocation of her probation in this matter.


[12]   Affirmed.


       Vaidik, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018   Page 6 of 6
