MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                   Jul 03 2018, 10:38 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                       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

David E. Bruner,                                          July 3, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-122
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Wendy Davis,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Samuel Keirns,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          02D06-1210-FB-173



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018                      Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, David E. Bruner (Bruner), appeals the trial court’s

      revocation of his probation and imposition of his previously suspended

      sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Bruner presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion by ordering Bruner to serve his previously suspended

      sentence after finding that he violated the terms of his probation.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 5, 2012, the State filed an Information, charging Bruner with Count

      I, dealing in a Schedule I, II, or III controlled substance, a Class B felony; and

      Count II, dealing in a substance represented to be a controlled substance, a

      Class D felony. On January 14, 2013, the State amended Count II to dealing in

      a look-a-like substance, a Class C felony. On February 4, 2013, Bruner pled

      guilty to Count I with the State dismissing Count II. During the sentencing

      hearing on March 5, 2013, the trial court sentenced Bruner to fifteen years, with

      nine years suspended and three years on Active Adult Probation.


[5]   After serving the executed portion of his sentence, Bruner was first released on

      December 19, 2014, into the reentry program at Allen County Community

      Corrections, which included 180 days of electronic monitoring. Although he

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 2 of 7
      initially made good progress, he was terminated from the reentry program on

      June 13, 2016 due to repeated violations. During his time spent in the reentry

      program, Bruner violated the terms of his release ten times by testing positive

      for cocaine, alcohol, opiates, amphetamines, antidepressants, or selective

      serotonin reuptake inhibitors, as well as failing to pay fees. With each

      violation, the court addressed the violation and imposed a penalty, ranging

      from community service, substance abuse treatment, support meetings, a

      halfway house to short bouts of jail time. After Bruner was terminated from the

      program, the trial court modified his remaining nine year sentence to five years

      executed and four years suspended to probation upon finding that his violations

      of the reentry program’s rules also were violations of his probation.


[6]   On July 24, 2017, Bruner was again released to the reentry program, after the

      trial court authorized his participation in the program. On August 21, 2017, he

      tested positive for marijuana, he missed a drug screen on August 22, 2017, and

      he admitted to the use of synthetic marijuana on August 28, 2017. As a result

      of these violations, Bruner was sentenced to three days at the Allen County

      Confinement Facility.


[7]   On October 31, 2017, the State filed a petition to revoke Bruner’s placement in

      the reentry program, claiming that he had tested positive for marijuana and that

      a screen on October 26, 2017 was positive for cocaine. On November 6, 2017,

      Bruner’s participation in the reentry program was again terminated and on

      December 19, 2017, the trial court conducted a hearing on Bruner’s revocation

      of probation. During the hearing, Brunner testified that he has been trying to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 3 of 7
      overcome his addiction since he was seventeen years old but “it’s very hard to []

      say no to the product when it’s waived in front of your face.” (Transcript p.

      12). He explained that when he was convalescing from a hip replacement he

      complained of pain to his friends, who are addicts too. Because he was out of

      pain medication, Bruner talked his friend into giving him some of his crack and

      he “ended up hitting it.” (Tr. p. 15). He requested the trial court to place him

      on probation because he needed another surgery for his hip and he needed “the

      rehabilitation access that the Fort Wayne orthopedics has in order to

      rehabilitate [himself] properly.” (Tr. p. 17). Nevertheless, the trial court found

      that it “ha[d] no other choice but to send [him] back to finish that sentence” and

      revoked the entirety of Bruner’s four-year suspended sentence. (Tr. p. 27). In

      sentencing Bruner, the trial court noted that, after the first violations rather than

      file a petition, Bruner’s case manager tried to get Bruner into treatment through

      the reentry program. The case manager also helped him obtain health

      insurance and set up an appointment with an orthopedic surgeon to address his

      hip problems. The trial court also noted that Bruner smoked cigarettes while at

      the hospital following hip surgery. The trial court found that Bruner had

      received every available service but had failed to “do any of the work” and that

      “putting [him] back on probation [] ma[de] no sense whatsoever.” (Tr. p. 26).

      As a result, the trial court revoked the entirety of Bruner’s suspended sentence.


[8]   Bruner now appeals. Additional facts will be provided if necessary.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 4 of 7
                               DISCUSSION AND DECISION
[9]    Bruner contends that the trial court abused its discretion by ordering him to

       serve his entire previously suspended sentence after revoking his probation. We

       review a trial court’s decision to revoke probation and a trial court’s sentencing

       decision in a probation revocation proceeding for an abuse of discretion.

       Abernathy v. State, 852 N.E.2d 1016 (Ind. Ct. App. 2006). An abuse of

       discretion occurs if the trial court’s decision is against the logic and effect of the

       facts and circumstances before the court. Id. When reviewing a trial court’s

       decision to order a defendant’s previously suspended sentence to be executed

       after revoking probation, we will not review the propriety of the original

       sentence. Id.


[10]   Probation is a criminal sanction wherein a convicted defendant specifically

       agrees to accept conditions upon his behavior in lieu of imprisonment. Brabandt

       v. State, 797 N.E.2d 855, 860 (Ind. Ct. App. 2003). There restrictions are

       designed to ensure that probation serves as a period of genuine rehabilitation

       and that the public is not harmed by a probationer living within the community.

       Id. As we have noted on numerous occasions, a defendant is not entitled to

       serve his sentence in a probation program; rather, such placement is a “matter

       of grace” and a “conditional liberty that is a favor, not a right.” Strowmatt v.

       State, 779 N.E.2d 971, 976 (Ind. Ct. App. 2002).


[11]   Generally speaking, as long as the trial court follows the procedures outlined in

       Ind. Code § 35-38-2-3, the trial court may properly order execution of a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 5 of 7
       suspended sentence. Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct. App. 2000),

       trans. denied. This statute provides that:


               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.


       I.C. § 35-38-2-3(i). In the instant case, Bruner does not allege that the trial court

       improperly found him to be in violation of the terms of his probation; rather,

       Bruner posits that the trial court abused its discretion by revoking all of his

       previously suspended sentence. In support of his allegation, he claims that

       “given Bruner’s long history of addiction, the staff at ReEntry had to have

       anticipated that relapse was a likely possibility. . . [T]he inquiry should have

       been why it was that Bruner had relapsed.” (Appellant’s Br. p. 14).


[12]   Despite Bruner’s contention, the reentry program and the trial court gave

       Bruner all possible opportunities to rehabilitate himself and to overcome his

       lifelong struggles with addiction. However, Bruner’s conduct during his

       participation in both sessions of the reentry program indicate that he was not an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 6 of 7
       appropriate candidate for the trial court’s exercise of “grace.” See Strowmatt,

       779 N.E.2d at 976. Bruner was given repeated chances to demonstrate to the

       trial court that he could refrain from using illegal drugs but failed to do so. The

       trial court attempted rehabilitation in the form of substance abuse treatment,

       support meetings, a halfway house, electronic monitoring and short bouts of

       incarceration during his repeated probation violations, all to no avail. In every

       instance, Bruner’s conduct displayed an unwillingness to comply with the terms

       of probation and a profound disrespect for the rule of law. Accordingly,

       because of Bruner’s flagrant and repeated violations of probation, the trial court

       did not abuse its discretion by ordering him to serve the entirety of the sentence.


                                             CONCLUSION
[13]   Based on the foregoing, we hold that the trial court properly imposed Bruner’s

       previously suspended sentence after revoking his probation.


[14]   Affirmed.


[15]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-122 | July 3, 2018   Page 7 of 7
