                                                                            FILED
                                                                        Nov 13 2019, 9:29 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                          Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana
                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Overstreet,                                       November 13, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1114
        v.                                                Appeal from the Dearborn Circuit
                                                          Court
State of Indiana,                                         The Honorable James Humphrey,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          15C01-1408-F5-55



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019                           Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jeffery Overstreet (Overstreet), appeals the trial court’s

      Order, revoking his probation and imposing the balance of his previously

      suspended sentence.


[2]   We affirm.


                                                     ISSUE
[3]   Overstreet presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by revoking the balance of his

      previously suspended sentence following his admission to having violated the

      conditions of his probation.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 4, 2014, in Dearborn County, Indiana, the State filed an

      Information, charging Overstreet with Count I, criminal confinement resulting

      in bodily injury, a Level 5 felony; Count II, domestic battery, a Class A

      misdemeanor; and Count III, interference with the reporting of a crime, a Class

      A misdemeanor. On August 7, 2014, Overstreet was released from jail after he

      posted a cash bond. On April 1, 2016, Overstreet pleaded guilty to the Level 5

      felony criminal confinement resulting in bodily injury. In exchange, the State

      dismissed the other charges. The trial court then sentenced Overstreet to the

      Indiana Department of Correction (DOC) for six years, with the entire sentence

      suspended to probation. Overstreet’s probation was to be supervised by the

      Dearborn County Probation Department.
      Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019       Page 2 of 8
[5]   At the time of his sentencing in the current cause, Overstreet was serving a

      sentence in the “Kentucky Department of Corrections” (Kentucky DOC) for a

      separate offense. (Transcript Vol. II, p. 19). On July 17, 2017, the Kentucky

      DOC released Overstreet. Overstreet was required to report to the Dearborn

      County Probation Department for his probation on July 20, 2017. However,

      because Overstreet was a resident of Kentucky, the Dearborn County Probation

      Department transferred Overstreet’s probation to Kentucky.


[6]   On February 12, 2019, the State filed a Request for Probation Violation

      Hearing, alleging that:


              On or about October 16, 2018, [Overstreet] submitted to a drug
              screen as directed by Kentucky Probation and Parole and
              subsequently tested positive for
              Amphetamines/Methamphetamines and THC; and that on or
              about November 6, 2018 and November 20, 2018, [Overstreet]
              submitted to drug screens for Kentucky Probation and Parole and
              subsequently tested positive for THC. These are violations of
              probation.


      (Appellant’s App. Vol. II, p. 100).


[7]   On March 19, 2019, the trial court conducted a probation revocation hearing

      and Overstreet admitted to the allegations. On April 24, 2019, the trial court

      conducted another dispositional hearing during which Dearborn County

      Probation Officer Steve Miller (Miller) testified. Miller stated that a probation

      violation was not filed immediately after Dearborn County probation officers

      learned of Overstreet’s positive drug screens because “Kentucky did not send


      Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019     Page 3 of 8
      this in a manner in which they were pushing for a probation violation to be filed

      at that point. They were still . . . willing to continue to work with [] Overstreet,

      give him some suggestions for treatment and to continue on with his

      supervision.” (Tr. Vol. II, p. 21). Miller then added that he learned through

      Kentucky Probation and Parole officials that Overstreet had been

      recommended for substance abuse treatment on two separate occasions in

      November 2018. On re-direct examination, Miller explained that it was his

      opinion that, irrespective of “whether [] Overstreet was participating in

      treatment one hundred percent (100%) or zero percent (0%), the probation

      violation needed to be filed based on these allegations.” (Tr. Vol. II, p. 34). At

      the conclusion of that hearing, the trial court took the matter under advisement.

      The trial court then reconvened at a separate hearing on April 29, 2019, and it

      revoked Overstreet’s probation ordering him to serve the balance of his

      previously suspended sentence in the DOC.


[8]   Overstreet now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   Overstreet appeals the trial court’s Order, revoking his probation and imposing

      the balance of his previously suspended sentence. “Probation is a matter of

      grace left to the trial court’s discretion, not a right to which a criminal

      defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is

      within the discretion of the trial court to determine probation conditions and to

      revoke probation if these conditions are violated. Id. We review the appeal

      from a trial court’s probation determination and sanction for an abuse of
      Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019         Page 4 of 8
       discretion. See id. An abuse of discretion occurs when the decision is clearly

       against the logic and effect of the facts and circumstances. Smith v. State, 963

       N.E.2d 1110, 1112 (Ind. 2012). A probation hearing is civil in nature and the

       State need only prove the alleged violation by a preponderance of the evidence.

       Id.


[10]   Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition has occurred. Sanders v.

       State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a violation is

       proven, then the trial court must determine if the violation warrants revocation

       of the probation. Id. However, where, as here, a probationer admits to the

       violations, the trial court can proceed immediately to the second step of the

       inquiry and determine whether the violation warrants revocation. Id. In

       determining whether the violation warrants revocation, the probationer must be

       given an opportunity to present evidence that explains and mitigates his

       violation. See id. Once a violation has been found and revocation of probation

       is warranted, the 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 of all

       or part of the sentence that was suspended at the time of initial sentencing. See

       Ind. Code § 35-38-2-3(h).




       Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019      Page 5 of 8
[11]   Overstreet argues that there was no benefit in placing him in the DOC and this

       “extreme sanction does not comport with the violations [he] committed.”

       (Appellant’s Br. p. 11). He continues by stating,


               that this is his first violation in this case, that he was working on
               addressing his drug use and the violations do not warrant such a
               severe revocation. In fact, after failing the three (3) drugs
               screens, a violation was not filed[,] and Overstreet was referred
               for treatment of which he was actively engaging in and no further
               failed drug screens were presented.


       (Appellant’s Br. p. 10). In support of his position, Overstreet relies on Heaton v

       State, 948 N.E. 2d 614 (Ind. 2013). Heaton addressed an issue regarding

       whether the trial court applied the correct standard to prove that Heaton had

       committed a new criminal defense in a probation revocation proceeding. Id. at

       616-17. Our supreme court concluded that the trial court had not applied the

       correct standard and, given the nature of Heaton’s remaining violations, it was

       remanded to the trial court for further proceedings, ordering the trial court to

       determine if Heaton had violated the terms of her probation and what sanction

       was appropriate. Id. at 618. Our reading of Heaton does not allow this court to

       conclude that trial courts are barred from revoking a person’s probation where

       they have submitted and admitted to several failed drug screens, or that a trial

       court abuses its discretion by revoking probation based on a first-time violation.


[12]   At the probation revocation hearing, Overstreet admitted to testing positive for

       illegal drugs—i.e., methamphetamine, amphetamines, and marijuana—on

       October 16, 2018, November 6, 2018, and November 20, 2018. His three

       Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019       Page 6 of 8
positive drug screens are hardly mere “technical” violations of probation.

Overstreet then argues that in light of his ongoing struggle with substance

abuse, he should be placed in Purposeful Incarceration where he would

continue to receive the substance abuse treatment he deserves. The record

shows that Overstreet’s past criminal history involves “six felony convictions,

eight probation violations, twenty-two (22) misdemeanors, []numerous attempts

at treatment involving drug court” in early 2000, and alcohol and substance

abuse treatment during the time he was recently incarcerated in the Kentucky

DOC. (Tr. Vol. II, p. 27). We are not convinced with Overstreet’s arguments

on appeal. Contrary to his argument, the same substance abuse treatments are

offered in the DOC. Also, we note, as did the trial court, that Overstreet has

received extensive treatment for his substance abuse in the past, but

nevertheless continues to abuse drugs. Overstreet has been shown considerable

leniency and given multiple opportunities to address his addiction, all to no

avail. In sum, when Overstreet agreed in his plea agreement that the trial court

could place him on probation, he impliedly agreed to comply with the terms of

any such probation and to the imposition of any punishment or consequence

for violating probation. Overstreet admitted to using drugs. Upon finding a

probation violation, the trial court was then required to look to the terms of the

probation revocation statute, specifically Indiana Code section 35-38-2-3(h), for

the potential consequences to be imposed for Overstreet’s violation of

probation. That section gave the trial court authority to order execution of all

or part of Overstreet’s sentence that was suspended at the time of initial

sentencing upon finding that Overstreet had violated a condition of his

Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019        Page 7 of 8
       probation. Thus, the trial court did not abuse its discretion by ordering

       Overstreet to serve five years, the balance of his previously suspended sentence.


                                              CONCLUSION
[15]   In sum, we conclude that the trial court did not abuse its discretion by revoking

       Overstreet’s probation. Accordingly, we affirm the trial court’s Order that

       Overstreet serve the balance of his previously suspended sentence.


[16]   Affirmed.


[17]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019       Page 8 of 8
