      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any
                                                                           Dec 31 2018, 9:02 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                   CLERK
                                                                            Indiana Supreme Court
      estoppel, or the law of the case.                                        Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Evan K. Hammond                                         Curtis T. Hill, Jr.
      Marion, Indiana                                         Attorney General of Indiana
                                                              Monika Prekopa Talbot
                                                              Supervising Deputy Attorney
                                                              General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA
      Desha A. Richey,                                        December 31, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              18A-CR-1489
              v.                                              Appeal from the Grant Superior
                                                              Court
      State of Indiana,                                       The Honorable Jeffrey D. Todd,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              27D01-1511-F5-131



      Mathias, Judge.


[1]   The Grant Superior Court revoked Desha Richey’s (“Richey”) probation and

      ordered her to serve three years executed in the Department of Correction.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018             Page 1 of 5
      Richey appeals and argues that the trial court abused its discretion when it

      ordered her to serve her previously suspended three-year sentence.

[2]   We affirm.


                                  Facts and Procedural History
[3]   In July 2016, Richey pleaded guilty in Grant Superior Court to Level 5 felony

      possession of a narcotic drug, Level 6 felony unlawful possession of a syringe,

      and Class C misdemeanor possession of paraphernalia. She was ordered to

      serve an aggregate four-year sentence, with one year executed in the

      Department of Correction and three years suspended to supervised probation.


[4]   On August 10, 2017, Richey tested positive for marijuana, opiates, and

      amphetamines. Richey admitted that she had violated her probation. She

      entered into an agreement with the State to enroll in the “Recovery Matters”

      inpatient treatment program and continue her probation. Richey enrolled in an

      inpatient treatment program1 on September 18, 2017, but she left the program

      two days later against the advice of her treatment provider. She also failed to

      report her decision to leave the program and her whereabouts to Grant County

      Probation.


[5]   On September 20, 2017, the State filed a petition to revoke Richey’s probation.

      A fact-finding hearing was held on May 21, 2018. Richey admitted to the



      1
       Recovery Matters did not have available beds. Therefore, Richey began an inpatient treatment program in
      Merrillville, Indiana.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018              Page 2 of 5
      allegations in the petition. The trial court found that Richey violated her

      probation and ordered her to serve her previously suspended three-year

      sentence in the Department of Correction. The court also recommended

      Purposeful Incarceration. The trial court indicated it would modify Richey’s

      sentence and return her to probation if she completed Purposeful Incarceration

      successfully. Richey now appeals.


                                         Standard of Review

[6]   Richey contends that the trial court abused its discretion when it revoked her

      probation and ordered her to serve her previously suspended three-year

      sentence. Probation is a matter of grace left to the trial court’s sound discretion,

      not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d

      184, 188 (Ind. 2007). The trial court determines the conditions of probation and

      may revoke probation if the probationer violates those conditions. Id.


[7]   The trial court’s sentencing decisions for probation violations are reviewable for

      an abuse of discretion. Id. An abuse of discretion occurs where the trial court’s

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

      before it or where the trial court misinterprets the law. Jackson v. State, 6 N.E.3d

      1040, 1042 (Ind. Ct. App. 2014).


                                     Discussion and Decision
[8]   Richey admitted that she violated her probation. Therefore, the trial court had

      the option of imposing one or more of the following sanctions: (1) continue

      Richey’s probation, with or without modifying or enlarging the conditions; (2)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018   Page 3 of 5
       extend her probationary period for not more than one year beyond the original

       probationary period; or (3) order execution of all or part of the sentence that

       was suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(h).


[9]    Richey argues that the trial court abused its discretion when it ordered her to

       serve her previously suspended three-year sentence because the court

       “sentenced her without finding any mitigating factors.”2 Appellant’s Br. at 7. A

       probationer who admits the allegation must be given an opportunity to offer

       mitigating evidence suggesting that the violation does not warrant revocation.

       See Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).


[10]   After admitting that she violated her probation and to using illegal substances,

       Richey explained why she left the inpatient treatment center. Richey stated that

       she was being sexually harassed by fellow patients, which caused her to suffer

       anxiety. Tr. p. 11. Richey also admitted that she failed to report to probation

       and keep her probation officer notified of her whereabouts, but stated she did so

       because she was taking care of her ill grandfather.


[11]   The trial court considered Richey’s testimony and noted that “the goal of

       everyone is for Ms. Richey to get clean. If she gets clean, she’s got a better

       chance of making good decisions.” Id. at 23. Because voluntary treatment had

       not been successful, the trial court ordered executed time to be served in




       2
         Richey cites to Anglemyer v. State, 875 N.E.2d 218, 219 (Ind. 2007), but the holding and analysis discussed in
       Anglemyer applies to Indiana’s criminal sentencing statutes and not to a sentence imposed following
       revocation of probation. See Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018                   Page 4 of 5
       Purposeful Incarceration. And upon successful competition of Purposeful

       Incarceration, the trial court indicated it would modify Richey’s sentence and

       return her to probation. Id.


[12]   The trial court thoughtfully considered Richey’s circumstances when it ordered

       her to serve her previously suspended three-year sentence. For these reasons, we

       conclude that the trial court did not abuse its discretion when it revoked

       Richey’s probation and sentenced her accordingly.


[13]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018   Page 5 of 5
