      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Mar 12 2020, 11:03 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Kay A. Beehler                                           Curtis T. Hill, Jr.
      Terre Haute, Indiana                                     Attorney General of Indiana

                                                               Megan M. Smith
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      David M. Riley,                                          March 12, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2109
              v.                                               Appeal from the Vigo Superior
                                                               Court
      State of Indiana,                                        The Honorable John T. Roach,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause Nos.
                                                               84D01-1805-F6-1607
                                                               84D01-1805-F6-1677



      Shepard, Senior Judge.


[1]   David M. Riley appeals the sentence the trial court imposed after determining

      he violated the terms of his probation. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020                    Page 1 of 6
[2]   On May 1, 2018, the State charged Riley with auto theft, a Level 6 Felony. On

      May 17, 2018, he was additionally charged with residential entry, a Level 6

      Felony, and battery resulting in bodily injury, a Class A misdemeanor. At the

      time, Riley also faced an earlier charge of auto theft. As part of his pre-trial

      release, Riley was ordered to participate in the Vigo County Sheriff’s GPS

      monitoring program and to undergo a mental health evaluation at the Hamilton

      Center. He was subsequently admitted into the residential treatment program

      at Hamilton Center, also known as Oak Street.


[3]   Less than a month later, the State petitioned to revoke Riley’s pre-trial release

      placement, claiming he failed to comply with the program’s call-in

      requirements, received five reports for failing to obey staff, and continued to use

      methamphetamine resulting in multiple positive drug screens.


[4]   On July 13, 2018, Riley entered into a plea agreement with the State in the Vigo

      Superior Court to plead guilty to two counts of auto theft as Level 6 Felonies in

      case numbers 84DOl-1805-F6-1573 and 84D01-1805-F6-1607, and to
                                                        1
      residential entry as a Level 6 Felony. The State dismissed the battery charge.

      At sentencing, Riley received one year for each cause, to be served

      consecutively, all of which was suspended to probation with the condition that

      he successfully complete the program at Oak Street. He was then released to

      Oak Street. About a month and a half after beginning probation, however, the



      1
        The sentence for the earlier charge of auto-theft, case number 84D01-1805-F6-1573, had been fully served;
      therefore, was not an issue for this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020                   Page 2 of 6
      court received notice from the State that Riley was not compliant with the

      program. He failed to abide by the rules and tested positive for

      methamphetamine; therefore, he failed to complete the program at Oak Street

      per court order. Riley’s Adult Probation Officer filed a notice of probation

      violation with the court, recommending that a hearing be held.


[5]   On March 15, 2019, the trial court held an evidentiary hearing and revoked

      Riley’s probation. Following Riley’s revocation, multiple dispositional hearings

      occurred with the last one concluding on June 7, 2019. On the same day, Riley

      was subsequently placed back on probation, under the following conditions:


              [D]efendant shall report daily to his probation officer; be placed
              on the drug screen call-in line; and get into treatment at [Oak
              Street]. These additional conditions shall continue until such
              time as a bed becomes available at [Oak Street]. At that time,
              defendant shall immediately enroll in that program and he is
              required to successfully complete the same.


      Appellant’s App. Vol. 2, p. 65.


[6]   At the time the trial court issued its order, there were no beds available at Oak

      Street. Riley contacted Oak Street three times and was told there were no beds

      available. Riley’s probation officer also attempted to contact Oak Street but did

      not receive any response. During the first four weeks of his new try at

      probation, Riley repeatedly tested positive for methamphetamine and THC, in

      addition to failing to provide a required drug screen. Appellant’s App. Vol. 2,

      pp. 67-68.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020   Page 3 of 6
[7]   Riley’s Adult Probation Officer filed a second notice of probation violation on

      July 15, 2019. On August 29, 2019, Riley admitted to violating his probation,

      and the trial court sentenced him to one year and 110 days, after credit time

      applied, in the Vigo County Jail, with the possibility of modification after

      serving 110 days.


[8]   Riley argues that the trial court imposed an inappropriate sentence in response

      to his probation violation, citing Indiana Appellate Rule 7(B). Appellate Rule

      7(B) “is not the correct standard to apply when reviewing a trial court’s actions

      in a post-sentence probation violation proceeding.” Jones v. State, 885 N.E.2d

      1286, 1290 (Ind. 2008); see also Prewitt v. State, 878 N.E.2d 184 (Ind. 2007).

      Abuse of discretion is the correct standard by which a probation revocation

      should be reviewed, as the trial court’s action in sentencing for a probation

      violation is not a criminal sentence as contemplated by Ind. App. Rule 7(B).

      Jones, 885 N.E.2d at 1290.


[9]   Probation, as opposed to incarceration, is a “matter of grace” and a

      “conditional liberty that is a favor, not a right.” Cox v. State, 706 N.E.2d 547,

      549 (Ind. 1999) (quoting Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App.

      1995)). “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, 878 N.E.2d at 188. This amount of discretion allows trial

      judges to choose an alternative sentence, whereas higher scrutiny would

      discourage trial court judges from extending that grace by ordering probation to

      future defendants. Id; see also Cox, 706 N.E.2d at 550 (“obstacles to revoking an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020   Page 4 of 6
       alternative sentence may diminish the likelihood of community corrections

       placements being made in the first place”). While Indiana case law promotes

       uniformity by creating guidelines and standards for sentencing discretion, it

       does not so do “at the expense of individualized consideration of each offender

       and their offense.” David J. Bodenhamer & Hon. Randall T. Shepard, The

       History of Indiana Law, p. 124 (Ohio Univ. Press 2014).


[10]   We exercise responsibility on appeal with restraint, recognizing the expertise of

       trial courts in making sentencing decisions, and in this particular case, the trial

       judge’s familiarity with the facts of the case and the judge’s repeated in-person

       interactions with Riley.


[11]   The trial court duly recognized Riley’s struggle with addiction noting “that

       pipe’s got [a] hold on you. And [I] recognize that and [I] know it’s hard to

       kick[,]” but also recognized that “[we] set you up, we give you treatment, back

       in; we set you up, give you treatment, back in, and I don’t know what else to do

       with you.” Tr. Vol. 2, pp. 19, 21. “At some point, you have to work harder

       than we are to keep yourself out.” Id. at 20. Riley exhibited an unwillingness

       or inability to conform his behavior to the law, displayed by the violation of his

       pre-trial release and the repeated violations of his probation. In addition, the

       trial judge directed that after 110 days of incarceration, Riley might seek a

       modification of his sentence if he was able to enroll in a legitimate treatment

       facility outside of Vigo County. Id. at 20-21.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020   Page 5 of 6
[12]   Based on Riley’s repeated violations of court orders and probation, the trial

       court did not abuse its discretion in revoking probation and ordering Riley to

       serve the remainder of his sentence.


[13]   For the foregoing reasons, we affirm the judgment of the trial court.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2109 | March 12, 2020   Page 6 of 6
