MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                    Nov 12 2019, 9:24 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana                                       Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon G. McAllister,                                  November 12, 2019
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        19A-CR-1425
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Petitioner.                                    Judge
                                                        Trial Court Cause No.
                                                        84D01-1509-F5-2108



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019                 Page 1 of 8
[1]   Brandon G. McAllister appeals the revocation of his probation. We affirm.


                                      Facts and Procedural History

[2]   On August 8, 2016, McAllister and the State entered into a plea agreement

      which McAllister agreed to plead guilty as charged under cause number 84D01-

      1509-F5-2108 (“Cause No. 2108”) to resisting law enforcement as a level 5

      felony, failure to remain at the scene of an accident with serious bodily injury as

      a level 6 felony, and reckless driving as a class A misdemeanor, and he agreed

      to admit to a probation violation under cause number 84D01-1207-FB-2252

      (“Cause No. 2252”). The State agreed to dismiss three other counts, its

      allegation that McAllister was an habitual offender, and its action under

      another cause. The plea agreement provided there was no agreement as to

      sentencing except that McAllister would not be sentenced to a term of

      imprisonment greater than eight years.


[3]   According to a presentence investigation report (“PSI”) prepared in September

      2016, McAllister “was diagnosed with paranoid schizophrenia in 2011, but is

      not being treated for it at this time.” Appellant’s Appendix Volume 2 at 58. It

      stated that he admitted to using marijuana and methamphetamine on a daily

      basis from the age of thirteen. Under mental health, it provided: “He reports

      that he was diagnosed as a juvenile with bipolar disorder. In 2011, he was

      diagnosed with paranoid schizophrenia. He is not currently under a physician’s

      care and is not taking any medications.” Id. at 64.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 2 of 8
[4]   On September 19, 2016, the court entered a sentencing order which stated there

      were no statutory mitigating factors but some weight was given to McAllister’s

      expression of remorse, and that the aggravating factors included his history of

      criminal behavior, that the harm caused the victim is significant and greater

      than the elements necessary to prove the offense, and that he was on probation

      when he committed the offense. The court ordered that he serve two years of

      his previously-suspended sentence under Cause No. 2252 and sentenced him to

      six years for his level 5 felony, two and one-half years for his level 6 felony, and

      one year for his class A misdemeanor under Cause No. 2108, to be served

      concurrently, but consecutive to Cause No. 2252, for a combined term of eight

      years in the Department of Correction (the “DOC”). The court also ordered

      purposeful incarceration and stated that if he successfully completed CLIFF

      and some education and/or job training, it would consider a modification.


[5]   On February 19, 2018, McAllister filed a petition to modify sentence stating

      that he had completed the CLIFF program, the course Power Over Addiction

      through Mothers Against Methamphetamine, and a series of eight courses by

      Home Bible Studies. On April 6, 2018, the court granted his motion,

      suspended sufficient time to modify his DOC release date to July 12, 2018,

      approved him for the Community Transition Program (“CTP”) under the

      supervision of Vigo County Community Corrections Work Release, ordered

      him to engage in any available relapse prevention programming while on CTP,

      and ordered that the time from July 12, 2018, to August 25, 2020, was

      suspended to formal probation and that, in the discretion of his probation


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 3 of 8
      officer, he could earn the right to convert to informal probation after

      successfully completing one year. The terms of his probation included that he

      would not violate any laws, that he agreed to submit to any drug screening test

      as requested, and that he acknowledged that a positive test would be deemed a

      violation of probation.


[6]   On April 22, 2019, McAllister’s probation officer filed a notice of probation

      violation alleging that McAllister had submitted to seven drug screens since

      being placed on probation, that six of those tested positive for

      methamphetamine, and that he was noncompliant with recommended drug

      treatment.


[7]   On May 22, 2019, the court held a revocation hearing at which McAllister’s

      probation officer testified that he submitted to seven drug screens and tested

      positive for methamphetamine on six of the screens. When asked if McAllister

      was supposed to undergo drug treatment, the officer stated “yeah, we’d come to

      an agreement for that,” that he was supposed to report to Choices, that he did

      receive an evaluation, and that he did not start the recommended program.

      Transcript Volume 2 at 6. When asked if Choices made efforts to work with

      McAllister, the officer answered that he believed so. When asked if he had a

      conversation with McAllister about the failed drug screens, the officer stated

      that he had multiple conversations with him about them. When asked for his

      recommendation, the officer answered “I honestly don’t have a

      recommendation. We’ve went through two (2) to three (3) different options

      with Mr. Mc[A]llister. [H]e’s not done any of them . . . so I honestly don’t

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 4 of 8
      have an opinion . . . I know what he needs to do, [] but he hasn’t done it so

      far.” Id. at 8. The prosecutor argued that McAllister “has had basically the

      most intensive drug treatment we can offer through DOC,” his sentence was

      modified, and he has failed nearly every drug screen that was given. Id. at 15.

      She stated she did not think that he had any intention of complying with the

      terms of probation and did not think there was “anything that we can offer him

      at this point here, having already been through [] RWI and Purposeful,” and

      “there’s nothing that we can offer locally, uh, even Choices, which he was

      offered as followed up care.” Id. at 15-16. McAllister’s counsel stated that, if

      the court found that a commitment to community corrections would be

      appropriate, McAllister could be placed on work release. The court asked

      “[s]tatus of any programming while on CTP,” and McAllister’s probation

      officer replied “[n]o. He hasn’t done anything.” Id. at 16. The court revoked

      McAllister’s previously-suspended time and ordered that he serve the sentence

      in the DOC.


[8]   On May 30, 2019, McAllister’s counsel filed a Motion to Reconsider Ruling

      which stated that he had acquired new information and attached a letter from

      Virgil Macke. The letter stated “I have been seeing Mr. McAllister at Hamilton

      Center for a few months now,” “I was hoping that the Dr. would place Mr.

      McAllister on Latuda . . . but she placed him on Abilify,” “[t]his is after several

      months that it took to get him in to see the Dr.,” “[a]nyway, Mr. McAllister’s

      brain is wired a little differently than others. A stimulant slows his brain down

      and allows him to concentrate and sleep better. Thus, the failed drug screens


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 5 of 8
       for meth,” and “I think that if Mr. McAllister could be placed on the right

       medication (Latuda) his life would be much different.” Appellant’s Appendix

       Volume 2 at 172. That same day, the court denied the motion.


                                                   Discussion

[9]    McAllister claims the trial court erred in revoking his probation. He states that

       he did not dispute that he violated the terms of his probation by testing positive

       for methamphetamine and failing to follow through with drug treatment

       recommendations but argues that he has suffered from severe bipolar disorder

       since childhood, that he self-medicates by using methamphetamine when he is

       not properly medicated for the disorder, and that while on probation he was not

       properly medicated. He argues “[t]his does not justify [his] methamphetamine

       abuse but explains why he returned to using drugs even after completing the

       CLIFF program,” that his therapist “implied that if properly medicated, [he]

       may not turn to methamphetamine to self-medicate,” and he could have been

       placed in community corrections and allowed to continue drug treatment.

       Appellant’s Brief at 10.


[10]   The State responds that the trial court did not abuse its discretion when it

       revoked McAllister’s probation, that he tested positive for methamphetamine

       on six occasions after completing CLIFF, that the probation department gave

       him multiple options to complete programs that would help with his drug use

       and addiction, and that he did not take advantage of them. It argues that

       McAllister’s claim that his violation was based on an underlying mental health

       issue is unfounded, Macke is a licensed social worker and not a psychologist or
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 6 of 8
       doctor, the court was not required to credit Macke’s opinion, and none of the

       speculation in Macke’s letter changes the facts before the court.


[11]   Ind. Code § 35-38-2-3 provides in part:

               If the court finds that the person has violated a condition 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.


[12]   We review trial court probation violation determinations and sanctions for an

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

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

       has explained that “[o]nce a trial court has exercised its grace by ordering

       probation rather than incarceration, the judge should have considerable leeway

       in deciding how to proceed” and that “[i]f this discretion were not afforded to

       trial courts and sentences were scrutinized too severely on appeal, trial judges

       might be less inclined to order probation to future defendants.” Prewitt, 878

       N.E.2d at 188.


[13]   The record reveals that the court initially imposed a combined sentence of eight

       years to be served in the DOC, ordered purposeful incarceration, and stated

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 7 of 8
       that, if McAllister successfully completed CLIFF and some education and/or

       job training, it would consider modification. McAllister later requested

       sentence modification stating that he had completed CLIFF and other

       programs, and the court granted his request, suspended a portion of his

       sentence to formal probation, and ordered him to participate in any available

       relapse prevention programming. McAllister does not dispute that he

       submitted to seven drug screens and six were positive for methamphetamine.

       His probation officer testified that he had multiple conversations with

       McAllister regarding his positive drug screens and that there was an attempt to

       work with him and present him with programming options, but he did not

       comply. The court emphasized the extent to which McAllister had received

       treatment and leniency and ordered that he serve his previously-suspended

       sentence. McAllister’s bipolar disorder diagnosis was reflected in the PSI, and

       the court was able to consider the letter from Macke but declined to reconsider

       the revocation of his probation on that basis.


[14]   Given the circumstances, we cannot say that the trial court abused its discretion

       in revoking McAllister’s probation and ordering that he serve the remainder of

       his previously-suspended sentence.


[15]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019   Page 8 of 8
