MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Oct 15 2018, 6:37 am

regarded as precedent or cited before any                                         CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey W. Elftman                                       Curtis T. Hill, Jr.
Public Defender                                          Attorney General of Indiana
Kokomo, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Symons,                                      October 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-775
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1502-F4-184



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018                     Page 1 of 10
                                Case Summary and Issue
[1]   Christopher Symons’ probation was revoked, and he was ordered to serve the

      entirety of his previously suspended six and one-half year sentence at the

      Indiana Department of Correction. Symons appeals the trial court’s order,

      raising only one issue for our review: whether the trial court abused its

      discretion in determining his sanction for the probation violation. Concluding

      the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On February 24, 2015, Symons was charged with dealing in methamphetamine,

      a Level 4 felony, neglect of a dependent, a Level 5 felony, and possession of

      chemical reagents or precursors with intent to manufacture a controlled

      substance, a Level 6 felony. On October 13, Symons pleaded guilty to dealing

      in methamphetamine, a Level 4 felony, in exchange for the State dismissing the

      remaining charges and Symons was sentenced to 3,650 days of which 2,190

      were to be executed with 1,960 days suspended to probation.


[3]   While incarcerated, Symons completed the Therapeutic Community Program

      and the trial court granted Symons’ petition for a sentence modification on

      March 17, 2017. The terms of his sentence modification required Symons to

      enroll in community corrections and probation. As a special condition of his

      probation and the Community Transition Program, Symons was required to




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 2 of 10
      participate in electronic bracelet monitoring, day reporting, and to enroll in the

      Howard County Re-Entry Court Program.


[4]   The Howard County Re-Entry Court Program is “a highly-supervised

      rehabilitative program available, for a maximum of three years, to individuals

      on parole, probation, and community transition, as well as those in Community

      Corrections due to a sentence reduction or modification.” Brief of Appellee at

      6. The re-entry court requires participants, among other things, to regularly

      report to caseworkers, participate in substance abuse treatment and counseling,

      comply with the terms of their case and treatment plans, abstain from using or

      possessing controlled substances, submit to regular drug testing, obtain

      employment, submit to searches of their persons and property, and refrain from

      committing criminal offenses. See id. During the seven months Symons was

      enrolled in the program, he traveled to unauthorized locations and

      misrepresented the numbers of hours he had worked.


[5]   On November 22, 2017, the trial court found Symons had absconded from the

      re-entry court and terminated him from the program. The same day, the State

      filed a petition to revoke Symons’ probation, alleging Symons’ failure to

      successfully complete re-entry court violated the conditions of his sentence

      modification order. Symons initially agreed to plead true to the violation in

      exchange for being placed on a direct commitment to in-home detention for the

      remainder of his suspended sentence. However, on January 11, 2018, his

      probation officer, Megan Enright, filed a report with the trial court

      recommending the trial court reject the plea agreement, stating:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 3 of 10
              While [Symons] was on the Howard County Re-Entry Program
              he was on a GPS bracelet with specific rules that he needed to
              follow. [Symons] was out of place on numerous occasions while
              on the bracelet and was sanctioned for these actions. [Symons]
              continued to disregard the rules after he served the sanction[s]
              and continued to go where he wanted to go, when he wanted to
              go regardless of if he had permission or not.


      Appellant’s Appendix, Volume 2 at 97. Enright concluded, “[Symons] is being

      set up for failure as he has already proven to the Court that he won’t follow the

      rules of the CTP/In Home Detention Program.” Id.


[6]   At a probation revocation hearing on February 8, 2018, the trial court followed

      Enright’s recommendation by rejecting Symons’ proposed plea agreement and

      Symons indicated that he would plead true to the violation without a plea

      agreement. Symons then admitted to the violation and the trial court found

      that he had violated the terms of his probation. Proceeding to disposition of the

      violation, Symons testified on his own behalf, stating:


              On the Re-entry Program, I was, it was just myself and my three
              boys that I was taking care of, so, you know, a lot of this stems
              back to, you know, the out of places where, you know, a lot of
              guys being allowed to go to the gas station. I had no one
              currently to, you know, to take the vehicle in and fill and [sic] it
              up with gas. You know, I was driving a hundred miles a day,
              you know, just back and forth to work was, you know, forty
              miles there, forty miles back so . . . .


      Transcript, Volume II at 24. As for the other violation of misrepresenting the

      number of hours that he had worked, Symons stated:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 4 of 10
        There was a mishap with some miscommunication with me
        writing how many hours I had worked one week and, you know,
        that was part of the, you know, violating the rules on Re-entry
        ....


Id. at 25. After hearing arguments regarding possible sanctions for Symons’

violations, the trial court concluded:


        As I recall, Mr. Symons didn’t have any problem passing any of
        the drug screens during the period of time that he was on Re-
        entry. One of the issues that we have since all substance abuse
        assessment tools are basically self-reporting, we have an
        individual who’s originally charged with Dealing in
        Methamphetamine and the question becomes is he a
        methamphetamine addict or is he a methamphetamine dealer?
        And a lot of folks are claiming that they are addicts and they
        want a chance to deal with their addiction and so we send them
        to the Therapeutic Community where instead of serving a prison
        sentence that they might otherwise deserve as a drug dealer, they
        get out upon successful completion and go into the Re-entry
        Program. One of the things that I’ve noticed during the course of
        the Re-entry Program is that addicts are much more successful
        than drug dealers because drug dealers are there solely because of
        criminal thinking and their drug use has been incidental to that
        and generally speaking, that sorts itself out pretty quickly. And
        in fact, in Mr. Symons’ case, he was violated before he even
        completed the CTP. I think what that shows is that the State of
        Indiana was correct back in 2015 when they charged him with
        Dealing in Methamphetamine, that he is a methamphetamine
        dealer, not a drug addict. And, you know, we gave him a
        tremendous opportunity by letting him out of prison when he still
        had 2,691 days hanging over his head. It’s no reason to believe
        that there’s anything that we can offer in this community that’s
        going to be of benefit to Mr. Symons. Accordingly, I’m going to
        impose the balance of the Defendant’s suspended sentence,
        which the court finds . . . as of today, is 2,408 days . . . .
Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 5 of 10
      Id. at 27-28. Symons now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   It is well settled that:


               Probation is a matter of grace and a conditional liberty which is a
               favor, not a right. The trial court determines the conditions of
               probation and may revoke probation if those conditions are
               violated. The decision to revoke probation is within the sound
               discretion of the trial court. And its decision is reviewed on
               appeal for abuse of that discretion.


      Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). “An abuse of

      discretion occurs when the decision is clearly against the logic and effect of the

      facts and circumstances before the court.” Id. We consider only the evidence

      most favorable to the judgment, and we will not reweigh the evidence or judge

      the credibility of the witnesses. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App.

      2006).


                                   II. Probation Revocation
[8]   Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

      (Ind. 2008). First, the trial court makes a factual determination that a violation

      of a condition of probation actually occurred and then, if the violation is

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

      probation. Id. “However, even a probationer who admits the allegations

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 6 of 10
      against him must still be given an opportunity to offer mitigating evidence

      suggesting that the violation does not warrant revocation.” Id. And, if the trial

      court finds that a violation occurred, the court may impose one 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 (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.


      Ind. Code § 35-38-2-3(h). A defendant is entitled to challenge the sanction a

      trial court decides to impose after revoking probation. Stephens v. State, 818

      N.E.2d 936, 939 (Ind. 2004).


[9]   Symons does not contest that violations actually occurred: he admits that he

      was unsuccessfully discharged from the Howard County Re-Entry Court

      Program in violation of the conditions of his sentence modification order.

      Instead, Symons argues the trial court abused its discretion by “neglecting to

      examine the circumstances involved in this case, . . . it simply decided that any

      violation, irrespective of the specific facts, warrants revocation.” Appellant’s

      Brief at 9-10. Specifically, Symons argues:


              The trial court’s statement that violation of re-entry leaves no



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 7 of 10
               other options for community supervision as lowering the
               supervision would merely lead to a person not getting caught for
               criminal behavior shows a predetermination prior to the
               presentation of mitigating evidence, and an abuse of discretion.
               The abuse of discretion is further shown by the trial court
               applying as an aggravating factor the Defendant’s passing of drug
               screens. The trial court seemed to use this sole piece of
               information to issue a fully executed sentence.


       Id. at 10 (citations to transcript omitted).


[10]   This, however, is the entirety of Symons’ argument and it is left unsupported by

       cogent reasoning or adequate citation to authority. “Indiana Appellate Rule

       46(A)(8) provides that the argument section of the appellant’s brief must

       ‘contain the contentions of the appellant on the issues presented, supported by

       cogent reasoning,’ along with citations to the authorities, statutes, and parts of

       the record relied upon, and a clear showing of how the issues and contentions

       in support thereof relate to the particular facts under review.” D.H. by A.M.J. v.

       Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018). Symons has therefore

       waived this issue for our review. See, e.g., Reed v. Reid, 980 N.E.2d 277, 297

       (Ind. 2012) (“Failure to comply with this rule results in waiver of the argument

       on appeal.”).


[11]   Waiver notwithstanding, even expanding Symons’ arguments to their logical

       conclusions, we would still conclude the trial court acted within its discretion.

       First, contrary to Symons’ assertion, we do not read the trial court’s statement

       of reasons for revoking Symons’ probation as evidencing “a predetermination

       prior to the presentation of mitigating evidence[.]” Appellant’s Br. at 10.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 8 of 10
       Nothing in the record suggests the trial court employed such a policy and we

       have routinely held the violation of a single condition of probation is sufficient

       to revoke probation. Richardson v. State, 890 N.E.2d 766, 768 (Ind. Ct. App.

       2008).


[12]   Secondly, we do not read the trial court’s statement as weighing Symons’

       passing of drug screens as an aggravating factor. We do, however, caution trial

       courts against injecting their personal philosophical views into their reasoning

       for one sanction or another, and we have explained that within the context of

       original sentencing, “it is improper for a trial court to impose a harsh sentence

       on the basis of the trial court’s desire to send a personal philosophical message

       about the general severity of an offense, rather than focusing upon facts that are

       peculiar to the particular defendant and offense.” Puckett v. State, 956 N.E.2d

       1182, 1188 (Ind. Ct. App. 2011). But we do not find that to be the case here.

       Although the trial court discussed Symons’ underlying conviction of dealing in

       methamphetamine, it did so in the context of Symons’ probation violations and

       their relation thereto. Moreover, the trial court showed considerable grace by

       not only ordering a portion of his original sentence to be suspended, but then

       again by granting Symons’ petition to modify that sentence. “Once a trial court

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

       judge should have considerable leeway in deciding how to proceed.” Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007). And although such discretion “is not

       boundless and it may be abused[,]” Puckett, 956 N.E.2d at 1188, we find

       nothing so egregious as to warrant reversal here.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 9 of 10
                                               Conclusion
[13]   Concluding the trial court acted within its discretion in ordering Symons to

       serve the entirety of his previously suspended sentence at the Indiana

       Department of Correction, we affirm.


[14]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018   Page 10 of 10
