MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                Nov 27 2019, 11:01 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
Jane Ann Noblitt                                        Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana
                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael D. Sample, Sr.,                                 November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1552
        v.                                              Appeal from the
                                                        Bartholomew Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      James D. Worton, Judge
                                                        Trial Court Cause No.
                                                        03D01-1312-FA-6443



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019              Page 1 of 5
                                          Case Summary
[1]   Michael D. Sample Sr. appeals the trial court’s order requiring him to serve all

      his suspended time after he admitted violating his probation. We affirm.



                            Facts and Procedural History
[2]   In December 2013, the State charged Sample with Class A felony dealing in

      methamphetamine and Class D felony maintaining a common nuisance. The

      next year, Sample pled guilty to the reduced charge of Class B felony dealing in

      methamphetamine, and the trial court sentenced him to sixteen years, with

      twelve years to serve in the Department of Correction and four years suspended

      to probation. In 2015, the trial court modified Sample’s sentence to six years to

      serve with Community Corrections and ten years suspended to probation. In

      early 2016 and again in early 2018, Sample was found to have violated the

      terms of probation—the first time by using meth, the second time by failing to

      report—but on both occasions the trial court ordered Sample to work release

      instead of sending him back to the DOC.


[3]   Then, in January 2019, the State filed its third petition to revoke Sample’s

      probation, alleging that he had once again used meth. Sample admitted that

      allegation, and the trial court ordered him to serve the remainder of his

      sentence—nearly 9 years—in the DOC.


[4]   Sample now appeals.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019   Page 2 of 5
                                Discussion and Decision
[5]   Sample contends that the trial court should not have ordered him to serve the

      remainder of his sentence in the DOC. Trial courts enjoy broad discretion in

      determining the appropriate sanction for a probation violation, and we review

      only for an abuse of that discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007).


[6]   Sample’s argument is very narrow. He asserts that the trial court “abused its

      discretion in issuing its determination by not taking into consideration the

      testimony [Sample] provided at the disposition hearing.” Appellant’s Br. p. 9.

      He notes that he testified that: (1) “he had been contending with several

      struggles in his relationships and recovery and was attempting to handle those

      struggles (and avoid a relapse) the best he could given the circumstances”; (2)

      he had a “tumultuous relationship with his live-in girlfriend, who is also an

      addict,” and “filed a restraining order against her and insisted she move out”;

      (3) he “went to the hospital for help and started going to church, with the goal

      of providing his family a new kind of lifestyle, which would include God and

      getting clean and sober”; (4) his girlfriend attempted suicide after he ended their

      relationship; (5) he has made great progress in his work toward sobriety; (6) his

      recent actions show “maturity and commitment” in his recovery; and (7) he

      wants to serve as a caretaker for his ill mother and as a “stable presence” for his

      mentally ill son. Id. at 9-10.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019   Page 3 of 5
[7]   There are three problems with Sample’s argument. First, he doesn’t cite

      anything to support his claim that the trial court did not take his testimony into

      consideration. Second, even if we assume that the trial court did not take his

      testimony into consideration, it was the trial court’s job to judge Sample’s

      credibility, not ours. See Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). And

      third, even if the trial court believed Sample’s testimony, his record in this

      case—which he fails to even acknowledge in his argument—more than supports

      the trial court’s decision to return him to the DOC for the remainder of his

      sentence. The trial court displayed leniency when it suspended four years of

      Sample’s original sentence to probation, despite Sample apparently having

      multiple prior felony convictions. See Tr. p. 38. It did so again when it

      significantly modified the sentence in late 2015, ordering that Sample be

      immediately released from the DOC. Within a matter of months, however,

      Sample violated his probation by using meth. The trial court could have sent

      Sample back to the DOC then, but it did not, instead choosing to order him to

      work release. Two years later, in early 2018, Sample was found to have

      violated his probation a second time by failing to report. Again, the trial court

      could have returned him to the DOC, but it allowed him to stay on work

      release. Sample failed to take advantage of the court’s continued leniency and

      once again violated his probation by using meth. As we see it, Sample has had

      more than three years to try to get on track outside the DOC and has failed

      badly. The trial court exercised great restraint during that time and was entirely

      justified in finally sending Sample back to the DOC to serve out his sentence.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019   Page 4 of 5
[8]   Affirmed.


      Najam, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1552 | November 27, 2019   Page 5 of 5
