MEMORANDUM DECISION
                                                                        Apr 30 2015, 9:24 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
Chris M. Teagle                                           Gregory F. Zoeller
Muncie, Indiana                                           Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jody A. Bailey,                                           April 30, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          05A02-1410-CR-722
        v.                                                Appeal from the Blackford Circuit
                                                          Court

State of Indiana,                                         The Honorable Dean A. Young,
                                                          Judge
Appellee-Plaintiff.                                       Cause No. 05C01-1011-FB-415




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015           Page 1 of 8
[1]   Jody A. Bailey appeals the trial court’s order revoking his probation and

      ordering that he serve the previously suspended portion of his sentence in the

      Department of Correction (the “DOC”). We affirm.


                                      Facts and Procedural History

[2]   In May 2011, Bailey pled guilty pursuant to a plea agreement to possession of

      methamphetamine as a class C felony, and in June 2011, the court accepted his

      plea and sentenced him to eight years with five years suspended. The court

      ordered that, after service of two years executed, he could petition the court to

      be released on home detention. In December 2012, he filed a petition for

      alternative placement, and in March 2012, following a hearing, the court

      granted his petition and ordered that he be placed on home detention through

      the Blackford County Community Corrections Program for the remaining

      portion of his executed sentence, and then immediately report to the Blackford

      County Probation Department for the remaining five years of his suspended

      sentence. On October 7, 2013, the court held a hearing at which Bailey

      appeared and the rules of probation were read and reviewed with him in open

      court.


[3]   On June 30, 2014, a Blackford County probation officer filed a Petition to

      Revoke, Modify, or Continue Suspended Sentence Placement which alleged

      that: on or about March 14, 2014, Bailey committed the pending offenses of

      aiding, inducing, or causing criminal mischief and assisting a criminal as class

      D felonies; on or about March 27, 2014, he was screened and the sample

      yielded a positive result for methamphetamine; and that he owed certain court
      Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 2 of 8
      costs, state substance abuse fees, attorney fees, and probation user fees. On

      August 11, 2014, the court held a hearing on the petition at which Bailey

      admitted that one of the rules of his probation was that he not possess or

      consume any controlled substances or prescription medications unless he had a

      valid script from a doctor, that in March of 2014 he submitted to a drug screen

      and it was positive for methamphetamine, and that he violated his probation by

      using methamphetamine.


[4]   On September 8, 2014, the court held a dispositional hearing at which Bailey

      requested that he be placed on house arrest at the home of his grandmother.

      The community corrections director testified that she had some reservations

      about accepting Bailey on home detention. The director testified that “with

      [Bailey’s] history, [she] would have some concern,” that Bailey’s “grandmother

      seemed uncertain about how long she wanted him there” and “[t]hey want him

      to find his own place as quick as possible,” that “[i]t is kind of out in the middle

      of nowhere,” that “[h]e does not have transportation anywhere [] to look for a

      job or to find a job,” that she had “not been given any information to verify a

      job that an uncle or cousin might get him,” and that she “just [has] a concern,

      given his history, in placing him in the home of a woman in her late 80’s [sic].”

      Transcript at 24. The director testified that Bailey had several curfew violations

      when he was on day reporting. Bailey’s counsel asked the court to consider

      placing Bailey on house arrest, and noted that he had been released for nine

      months, that the only substantive violation was the one dirty drug screen, and

      that he had been incarcerated for two and one-half months due to the violation.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 3 of 8
      The court indicated it would issue an order and include the credit-time

      calculation.


[5]   In an order signed September 9, 2014, and file-stamped September 10, 2014, the

      court found:

              That [Bailey] is not a good candidate for probation, or additional
              commitment to the Blackford County Community Corrections
              Program in that he has been in and out of prison since he was 15 years
              of age; is now 41 years of age; has not availed himself of numerous
              opportunities throughout his juvenile and adult life to rehabilitate
              himself, including counseling, drug rehabilitation, and periods of
              commitment to local security facilities and the Indiana Department of
              Correction.

      Appellant’s Appendix at 58. The court revoked his community corrections

      placement and probation, and ordered that he serve the remaining 1,785 days of

      his sentence in the DOC less any good time credit to be determined by the

      DOC.


                                                   Discussion

[6]   The issue is whether the trial court abused its discretion in ordering that Bailey

      serve his previously suspended sentence in the DOC. Bailey does not challenge

      the finding that he violated his probation; rather, he argues that the sanction

      imposed was not warranted and should be revised. He specifically asserts that

      his sentence should be revised in accordance with Appellate Rule 7 and that this

      court should remand with instructions to revise his sentence to time served with

      the remainder to be served on either day reporting and/or supervised probation.

      The State’s position is that the court did not abuse its discretion in revoking

      Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 4 of 8
      Bailey’s probation and that Appellate Rule 7(B) is not an available remedy in

      the context of probation revocations. The State argues that Bailey admitted

      committing precisely the same offense for which he was convicted in the first

      place and for which he was serving probation, that he had not shown much

      regard for the opportunity and grace he was given, and that “[i]nstead, he

      picked up right where he left off . . . .” Appellee’s Brief at 6. The State also

      notes that the trial court and probation officer identified concerns which make

      Bailey a bad candidate for home detention.


[7]   We first observe that a trial court’s action in a post-sentence probation violation

      proceeding is not a criminal sentence as contemplated by Ind. Appellate Rule

      7(B). Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008) (citing Jones v.

      State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s action in a post-

      sentence probation violation proceeding is not a criminal sentence as

      contemplated by the rule. The review and revise remedy of App. R. 7(B) is not

      available.”)), trans. denied. Rather than the independent review afforded

      sentences under Ind. Appellate Rule 7(B), a trial court’s sentencing decisions for

      probation violations are reviewable using the abuse of discretion standard. Id.


[8]   Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if it finds a

      probation violation and provides:

              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:



      Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 5 of 8
                        (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.


[9]    The Indiana Supreme Court has held that a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.

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

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

       circumstances. Id. (citation omitted). As long as the proper procedures have

       been followed in conducting a probation revocation hearing, “the trial court

       may order execution of a suspended sentence upon a finding of a violation by a

       preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

       App. 1999).


[10]   The record reveals that the trial court originally sentenced Bailey to eight years

       with three years executed and five years suspended, the court later permitted

       him to serve a portion of his executed sentence on community corrections, the

       rules of probation were read and reviewed with him in open court on October 7,


       Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 6 of 8
       2013, in March 2014 he submitted to a drug screen and tested positive for

       methamphetamine, and that in August 2014 he admitted that he violated his

       probation by using methamphetamine.


[11]   At the dispositional hearing, the court heard testimony from the community

       corrections director that Bailey’s grandmother wanted him to find his own place

       as soon as possible, that he does not have transportation to look for a job, that

       she had not been given any information to verify any job that his uncle or

       cousin might have been able to help him obtain, and that she had a concern

       given Bailey’s history in placing him “in the home of a woman in her late 80’s

       [sic].” Transcript at 24. In its order revoking probation, the court found that he

       is not a good candidate for probation or additional commitment to community

       corrections in that he has been in and out of prison since he was fifteen years of

       age, is now forty-one years of age, and has not availed himself of numerous

       opportunities throughout his juvenile and adult life to rehabilitate himself,

       through counseling, drug rehabilitation, or incarceration.


[12]   Given the circumstances, including that Bailey used methamphetamine within

       six months after the rules of probation were read and reviewed with him in

       October 2013, and that he was serving probation in connection with his

       conviction for possession of methamphetamine, we cannot say that the court

       abused its discretion in ordering him to serve his previously suspended

       sentence. See Milliner, 890 N.E.2d at 793 (holding that the trial court did not




       Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 7 of 8
       abuse its discretion in reinstating the probationer’s previously suspended

       sentence).


                                                    Conclusion

[13]   For the foregoing reasons, we affirm the trial court’s order that Bailey serve his

       previously suspended sentence.


[14]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015   Page 8 of 8
