Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                              Jun 16 2014, 9:15 am
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:

RYAN W. TANSELLE                                    GREGORY F. ZOELLER
Capper Tulley & Reimondo                            Attorney General of Indiana
Brownsburg, Indiana
                                                    MONIKA P. TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JEREMIAH D. BREEDLOVE,                              )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 32A01-1309-CR-421
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                            The Honorable Karen M. Love, Judge
                          The Honorable Tammy Somers, Magistrate
                               Cause No. 32D03-0311-FD-180



                                          June 16, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Jeremiah D. Breedlove, contending that the trial court abused its discretion, appeals

the trial court’s order revoking his probation for Class D felony theft and directing that he

serve the remainder of his previously-suspended sentence on work release.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On November 18, 2003, the State charged Breedlove with operating a motor vehicle

while intoxicated in a manner that endangers a person, a Class A misdemeanor, operating

a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less

than 0.15 gram of alcohol per one hundred milliliters of the person’s blood or two hundred

ten liters of the person’s breath, a Class C misdemeanor, theft, a Class D felony, public

intoxication, a Class B misdemeanor, driving while suspended, an infraction, and driving

left of center, an infraction. Pursuant to a plea agreement, Breedlove pleaded guilty to

theft, a Class D felony, and his remaining charges were dismissed. The trial court accepted

Breedlove’s plea agreement and, on April 8, 2004, sentenced him to 545 days with 541

days suspended to probation.

       Breedlove’s probation order included the following pertinent conditions:

       3. You shall report weekly to the Probation Officer unless otherwise directed
       by your Probation Officer.

       ....

       12. You shall be evaluated for a substance abuse program within forty-five
       (45) days of today. You shall successfully complete and pay for any program
       to which you are referred.

       ....


                                             2
       14. You shall pay [various court costs and probation fees].

Appellant’s App. at 33.

       On June 8, 2005, the State filed a Petition and Notice of Probation Violation.

Following a hearing, the trial court determined that Breedlove had violated the terms and

conditions of probation by failing to complete a substance abuse treatment program and by

failing to pay court costs, fines, attorney fees, and probation fees totaling $975. Id. at 61.

Breedlove was given the option “to do 20 additional days in jail or four additional months

on probation to get his counseling and his fees completed.” Tr. at 21. Breedlove chose to

extend his probation. Accordingly, on August 29, 2005, the trial court entered an order

extending Breedlove’s probation an additional four months, to February 8, 2006.

Appellant’s App. at 61.

       Breedlove failed to attend a scheduled probation appointment on October 5, 2005.

Instead, he left a voicemail for his probation officer, Courtney Sacchini, stating that, “he

could not report to the appointment because his car had been repossessed.” Tr. at 21.

Sacchini called back and left a message stating that she had rescheduled the appointment

and that Breedlove “needed to appear on October 26 of 2005.” Id. Breedlove again failed

to appear, but he did not call to explain or reschedule.

       The State filed a second Petition and Notice of Probation violation on November 3,

2005, alleging that Breedlove failed to report to probation appointments as directed, failed

to obtain a substance abuse evaluation and complete treatment, and failed to pay $530 in

probation fees. Appellant’s App. at 63. The next day, the trial court issued a warrant for

Breedlove’s arrest. In July 2006, Sacchini checked her file and discovered that the warrant

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was still active. Tr. at 22. A call to the local jail confirmed that Breedlove’s warrant had

not been served. On July 19, 2006, Sacchini called Breedlove at the same phone number,

discovered that he was living in Florida, and notified him that “he had an active warrant.”

Id. Breedlove assured Sacchini that he planned to come back to Hendricks County the next

month to turn himself in. Id. Sacchini’s files revealed that July 19, 2006 was the last time

that she spoke with Breedlove.

        The case lay dormant until December 3, 2012, when the State filed a motion to

amend and reissue the warrant, indicating that the State was still interested in prosecuting

Breedlove for the violation. Appellant’s App. at 77. Breedlove was arrested on May 22,

2013. An evidentiary hearing was held on August 28, 2013, at which Breedlove admitted

to having violated the conditions of his probation as stated in the Petition and Notice of

Probation Violation. Tr. at 6, 8-10. The trial court found that Breedlove violated his

probation and sentenced him to 493 days1 executed in the Indiana Department of Correction

to be served on home detention, if eligible. Appellant’s App. at 88. Breedlove was found

ineligible for home detention, and on September 12, 2013, the trial court amended his

sentence and ordered him to serve 493 days on work release. Id. at 96, 101. Breedlove

now appeals.2




        1
          Calculating the time remaining on Breedlove’s probation, the trial court subtracted 48 days of
credit time from the original 541 days that had been suspended to probation, which left 493. Tr. at 28, 31.

        In his brief, Breedlove stated, “[H]e is presently scheduled to be released from the Hendricks
        2

County Work Release Center on May 15, 2014.” Appellant’s Br. at 5


                                                    4
                                   DISCUSSION AND DECISION

        Breedlove contends that the trial court abused its discretion when it revoked his

probation and ordered him to serve his previously-suspended sentence in its entirety.3

Specifically, he contends that he was “genuinely rehabilitated by his prior period of

probation,” mitigating circumstances explained his probation violation, and he had not

committed any additional criminal offenses.

        As this court recently noted:

        Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485,
        488 (Ind. Ct. App. 2006). First, the court must make a factual determination
        that a violation of a condition of probation has occurred. Id. When a
        probationer admits to the violation, the court can proceed to the second step
        of the inquiry and determine whether the violation warrants revocation. Id.
        At this step, the probationer must be given an opportunity to present evidence
        that explains and mitigates his violation. Id.

Alford v. State, 965 N.E.2d 133, 134-35 (Ind. Ct. App. 2012), trans. denied.

        Upon the revocation of probation, a trial court may impose one 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

year beyond the original probationary period; or (3) order execution on all or part of the

sentence that was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g). A

trial court’s sentencing decisions for probation violations are reviewable for an abuse of


        3
          Breedlove does not argue that the trial court abused its discretion by ordering him to serve his
suspended sentence on work release. Initially, Breedlove argued that the trial court abused its discretion
by sentencing him to the Hendricks County Work Release Facility. Appellant’s Br. at 10. The State
responded, saying, “By requesting for the trial court to place [him] in work release, [Breedlove] has invited
any error created by such placement.” Appellee’s Br. at 5. However, in his reply brief, Breedlove clarified
that he “did not challenge the specific imposition of work release . . . rather, [he] challenged the trial court’s
determination to revoke his suspended sentence in its entirety . . . .” Appellant’s Reply Br. at 1.

                                                        5
discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion

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

circumstances. Id.

       During the evidentiary hearing, Breedlove admitted that he violated his terms of

probation by failing to complete a required drug counseling program and by failing to pay

$530 in fees. Tr. at 6, 8-10. The trial court then gave Breedlove the opportunity to present

evidence to explain and mitigate the violation. Breedlove testified that his last conversation

with Sacchini led him to believe he “was off of probation” when he was in Florida. Id. at

8. Breedlove asserted that he had changed since 2005 and had not been in criminal trouble

in the last eight years. Id. at 9. He also said that he had worked as an iron worker, but is

now unable to work due to an injury. Id. Instead, Breedlove cares for his nine-year-old

child as a stay at home father while his wife works. Id. Finally, Breedlove commented,

“I’m the person that you guys want us to be when we leave here from you.” Id.

       At the close of the hearing, the trial court reiterated its finding that Breedlove had

violated his probation and ordered that he serve the “remainder of the sentence.” Id. at 29.

As explanation, the trial court addressed Breedlove as follows: “I agree with your attorney

it’s a good thing that you have not been in trouble, however[,] there’s been testimony[,]

which I believe[,] that you knew that you were still on probation and you needed to turn

yourself in and you didn’t turn yourself in sir so I can’t reward that conduct, do you

understand?” Id. at 30. Breedlove responded that he understood. Id.

       After Breedlove admitted that he had violated his probation, the trial court provided

him with an opportunity to explain why his punishment should be lenient. The trial court

                                              6
heard that Breedlove had not been arrested since 2005, had a family and, as a stay at home

father, provided care for his nine-year old child while his wife worked. In defense of

having violated his probation, Breedlove testified that he believed he had successfully

completed his probation. Id. at 8. In contrast, Sacchini testified that she called Breedlove

on July 19, 2006 and notified him that “he had an active warrant.” Id. Breedlove assured

Sacchini that he planned to come back to Hendricks County the next month to turn himself

in. Id. Sacchini’s files revealed that July 19, 2006 was the last time that she spoke with

Breedlove.

       The trial court found Sacchini’s testimony to be more credible.           Noting that

Breedlove could not be rewarded for failing to turn himself in on an active warrant for a

probation violation, the trial court sentenced him to serve the remainder of his previously-

suspended sentence on work release. This decision is not clearly against the logic and

effect of the facts and circumstances. Breedlove’s argument on appeal is essentially a

request that we reweigh the evidence. This we cannot do. See Mogg v. State, 918 N.E.2d

750, 755 (Ind. Ct. App. 2009) (in determining whether trial court abused its discretion, we

do not reweigh evidence and consider conflicting evidence in light most favorable to trial

court’s ruling). Accordingly, the trial court did not abuse its discretion when it revoked his

probation and ordered Breedlove to serve the remainder of his previously-suspended

sentence.

       Affirmed.

MAY, J., and BAILEY, J., concur.



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