      MEMORANDUM DECISION
                                                                        Dec 22 2015, 10:10 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Jennifer A. Joas                                          Gregory F. Zoeller
      Madison, Indiana                                          Attorney General of Indiana
                                                                Karl M. Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA
      Violet E. Tunstall,                                       December 22, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                15A01-1506-CR-675
                                                                Appeal from the Dearborn Circuit
               v.                                               Court.
                                                                The Honorable Kimberly A.
      State of Indiana,                                         Schmaltz, Magistrate.
                                                                Cause No. 15C01-0308-FA-9
      Appellee-Plaintiff.




      Barteau, Senior Judge


                                        Statement of the Case
[1]   Violet E. Tunstall appeals the sentence imposed upon her after revoking her

      probation. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015   Page 1 of 5
                                                     Issue
[2]   The sole issue Tunstall presents for our review is whether the trial court abused

      its discretion by ordering her to serve eight years executed, the remainder of her

      previously-suspended sentence.


                                Facts and Procedural History
[3]   On August 21, 2003, Tunstall was charged with dealing in cocaine as a Class A

      felony and maintaining a common nuisance as a Class D felony. The State

      later alleged that Tunstall was an habitual offender. On July 2, 2004, Tunstall

      pleaded guilty to dealing in cocaine as a Class B felony in exchange for the

      dismissal of the remaining allegations against her. Pursuant to the terms of the

      plea agreement, she agreed to a twenty-year sentence with fourteen years

      suspended to probation and was sentenced in accordance with the terms of the

      plea agreement.


[4]   Tunstall was released from prison on January 11, 2006 and began her

      probation. On May 11, 2006, however, the State filed a request for a probation

      violation hearing, alleging that Tunstall had violated the conditions of her

      probation by failing a drug screen which showed that she had used cocaine. On

      August 15, 2006, Tunstall admitted the allegations and the trial court revoked

      two years of her previously-suspended sentence.


[5]   A second request for a probation violation hearing was filed on March 19, 2012,

      alleging that Tunstall had violated the conditions of her probation by operating

      a vehicle while intoxicated, a Class A misdemeanor offense, resisting law

      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015   Page 2 of 5
      enforcement, as a Class A misdemeanor offense, and consuming alcohol.

      Tunstall admitted the allegations and the court revoked four years of the

      remaining previously-suspended sentence.


[6]   On March 31, 2015, the State filed a third request for a probation violation

      hearing, alleging that during a drug screen Tunstall had tested positive for

      cocaine and heroin. On April 16, 2015, she admitted the violation. The trial

      court revoked her probation and ordered her to serve the remainder of her

      previously-suspended sentence, eight years. Tunstall now appeals.


                                   Discussion and Decision
[7]   Tunstall argues that the trial court abused its discretion revoking her probation

      and imposing the sentence it did. We start by observing that 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). Once a

      court has exercised its grace by ordering probation rather than incarceration,

      the judge should have considerable leeway in deciding how to proceed. Id.

      When a court finds that a person has violated a condition of probation, the

      court may: (1) continue the person on probation; (2) extend the probationary

      period for no more than one year beyond the original probationary period; or

      (3) order execution of all or part of the previously-suspended sentence. Ind.

      Code § 35-38-2-3(h) (2012). Accordingly, a court’s sentencing decisions for a

      probation violation are reviewable under the abuse of discretion standard.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015   Page 3 of 5
       Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs where the decision is

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


[8]    Here, Tunstall admitted her probation violation, thus an evidentiary hearing

       was not required. Ind. Code § 35-38-2-3(e) (2012). During the second step of

       the process—determining whether the violation warrants revocation—she was

       given the opportunity to provide evidence in mitigation of her violation in

       support of an appeal to the court that her violation did not warrant revocation.

       See Sparks v. State, 983 N.E.2d 221, 225 (Ind. Ct. App. 2013) (after admission,

       probationer must be given opportunity to submit mitigating evidence to argue

       against revocation).


[9]    Tunstall argues that this was her first dirty screen since her most recent release

       from prison and that her relapse was the result of myriad family issues beyond

       her control. Tunstall and one of her daughters testified about the family’s issues

       with sobriety and inability to lead law abiding lives. One of Tunstall’s

       daughters had died from a drug overdose, one daughter was in prison, a son

       was on the lam after his bond was revoked, and another son was ostracized

       from the family due to the thefts he had perpetrated on them. The daughter

       who testified on behalf of Tunstall had only recently returned to Indiana from

       Florida with her young son in support of Tunstall.


[10]   Be that as it may, when faced with the stress of the chaos within her family,

       Tunstall accepted her daughter-in-law’s invitation to turn to drugs as a respite

       from the chaos. The probation violation that ensued was Tunstall’s third since


       Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015   Page 4 of 5
       her initial conviction for dealing in cocaine. Her first occurred within months

       after being released from prison, testing positive for cocaine. Her second

       violation resulted from her convictions of operating while intoxicated,

       registering 0.28 BAC, and resisting law enforcement. The violation at issue in

       this appeal involved Tunstall’s consumption of cocaine and heroin. The cutoff

       for a positive result for opiates is 5,000. Tunstall’s test result was 67,000.


[11]   Tunstall had been given the opportunity to lead a law abiding life. She has a

       criminal history including eight Class B felony convictions. When given the

       opportunity to reform herself through periods of probation, she repeatedly

       returned to criminal activity. The consequence for her two previous

       revocations included periods of incarceration, first two years, then four years.

       Nevertheless, Tunstall violated her probation a third time. Because the trial

       court’s decision is not clearly against the logic and effect of the facts and

       circumstances, we find no abuse of discretion here.


                                                 Conclusion
[12]   In light of the foregoing, we affirm the decision of the trial court.

[13]   Affirmed.


       Barnes, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-675] | December 22, 2015   Page 5 of 5
