MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 12 2019, 8:56 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew T. Bates                                         Curtis T. Hill, Jr.
R. Patrick Magrath                                       Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
                                                         Samantha M. Sumcad
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mindy J. Woliung,                                        June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-358
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69C01-1002-FA-4



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019                  Page 1 of 7
                                             Case Summary
[1]   Mindy Woliung (“Woliung”) appeals the trial court’s sanction, following a

      probation revocation hearing at which Woliung admitted to violating the terms

      of her probation. She raises one issue on appeal, namely, whether the trial

      court abused its discretion when it ordered her to serve four years of her five-

      year suspended sentence.


[2]   We affirm.



                                Facts and Procedural History
[3]   On February 24, 2010, the State charged Woliung with aiding in dealing

      cocaine, as a Class A felony.1 On October 24, 2011, Woliung pled guilty to an

      amended charge of possession of cocaine, as a Class C felony.2 The trial court

      sentenced Woliung to a period of eight years with five years suspended.

      Following a period of home detention, Woliung was placed on probation. Her

      terms of probation included requirements that she not commit another criminal

      offense, not use alcohol or other non-prescribed controlled substances, and

      permit drug testing.


[4]   On January 31, 2013, the State filed a petition for a probation violation hearing

      on the grounds that Woliung had violated her probation by testing positive for



      1
          Ind. Code § 35-48-4-1(b) (2010).
      2
          I.C. § 35-48-4-6(b) (2011).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 2 of 7
      methamphetamine in two different drug screens taken on November 1, 2012,

      and January 22, 2013. On March 5, 2013, the State filed an amended petition

      for a probation violation hearing on the additional grounds that Woliung had

      been charged with False Informing, as a Class B misdemeanor.3 On March 15,

      the State filed another amended petition alleging Woliung also violated the

      terms of her probation by dealing methamphetamine, as a Class A felony,4 and

      possessing methamphetamine, as a Class C felony,5 in November of 2012. The

      false informing and possession charges were dropped but Woliung was

      convicted of the dealing charge. Following an October 20, 2014, fact finding

      hearing, the trial court found that Woliung had violated the conditions of her

      probation by “having been convicted of a criminal offense” in Marion County,

      but it ordered her to continue on probation under the same initial terms and

      conditions. App. Vol. II at 132.


[5]   On June 4, 2018, the State filed another petition for a probation violation

      hearing in which it alleged that, on May 17, 2018, Woliung had tested positive

      for methamphetamine, and that she was in arrears in probation and testing fees.

      On January 16, 2019, Woliung admitted to the probation violation, and the

      trial court granted the State’s petition to revoke Woliung’s probation. The trial

      court revoked four years of Woliung’s five-year suspended sentence. In making




      3
          I.C. § 35-44.1-2-3(d) (2013).
      4
          I.C. § 35-48-4-1.1(b) (2012).
      5
          I.C. § 35-48-4-6.1(b) (2012).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 3 of 7
      its decision, the trial court found Woliung’s admission to be a mitigating factor,

      and it also “consider[ed]” that she was employed and had passed all other

      recent drug tests. Tr. at 40. The trial court also made note of Woliung’s past

      criminal convictions and the leniency shown to her in past sentencing decisions.


[6]   This appeal ensued.



                                 Discussion and Decision
[7]   Woliung argues that the trial court abused its discretion when it imposed a

      sanction for her probation violation. “Probation is a matter of grace left to trial

      court discretion, not a right to which a criminal defendant is entitled.” Prewitt v.

      State, 878 N.E.2d 184, 188 (Ind. 2007); see also Treece v. State, 10 N.E.3d 52, 56

      (Ind. Ct. App. 2014), trans. denied. We review probation violation

      determinations and sanctions for an abuse of discretion. Heaton v. State, 984

      N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion occurs where the decision

      is clearly against the logic and effect of the facts and circumstances, or when the

      trial court misinterprets the law.” Id. (citations omitted). “As with other

      sufficiency issues, we do not reweigh the evidence or judge the credibility of

      witnesses.” Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (citation

      and quotation omitted), trans. denied.


[8]   A probation revocation proceeding is a two-step process. Heaton, 984 N.E.2d at

      616. First, the trial court must determine whether the preponderance of the

      evidence showed that a probation violation occurred. Id.; see also I.C. § 35-38-2-


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 4 of 7
      3 (requiring that an evidentiary hearing be held on revocation of probation and

      providing for confrontation and cross-examination of witnesses by the

      probationer). “When a probationer admits to violations of the terms of his

      probation, the procedural safeguards of [I.C. § 35-38-2-3] are unnecessary.

      Instead, the court can proceed to the second step of the inquiry and determine

      whether the violation warrants revocation.” Woods v. State, 892 N.E.2d 637,

      640 (Ind. 2008) (citations omitted).


[9]   In the second step of the process, the trial court must determine whether the

      probation violation warrants revocation of probation or some lesser sanction.

      Heaton, 984 N.E.2d at 616 (“[I]f a violation is found, then the trial court must

      determine the appropriate sanctions for the violation.”); Patterson v. State, 659

      N.E.2d 220, 222-23 (Ind. Ct. App. 1995) (“A court has several dispositional

      options in a revocation proceeding.”). Indiana Code Section 35-38-2-3(h)

      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:


              (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.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 5 of 7
               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.


       Our Supreme Court has held that this statute “permits judges to sentence

       offenders using any one of or any combination of the enumerated powers.”

       Prewitt, 878 N.E.2d at 187. And, while probationers must be given the

       opportunity to present mitigating factors, Woods, 892 N.E.2d at 640, the trial

       court is not required to consider aggravating and mitigating factors when

       deciding whether to revoke probation, Porter v. State, 117 N.E.3d 673, 675 (Ind.

       Ct. App. 2018). Moreover, a single violation of a condition of probation is

       sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d

       752, 755 (Ind. Ct. App. 2015).


[10]   Here, Woliung does not dispute that the trial court had authority to sanction

       her pursuant to Indiana Code Section 35-38-2-3(h), given that she admitted to

       the probation violation. Rather, Woliung seems to contend that the trial court

       erred in weighing the mitigating and aggravating circumstances—giving

       insufficient weight to her admission to the violation and other alleged good

       behavior and too much weight to what she seems to believe were “minor

       probation violations.” Appellant’s App. at 10. First, Woliung forgets that the

       trial court need not consider mitigating and aggravating factors at all. Porter,

       117 N.E.3d at 675. Second, Woliung’s contentions amount to requests that we

       reweigh the evidence or judge witness credibility, which we cannot do. Jenkins,

       956 N.E.2d at 148. And, third, committing an additional drug-dealing crime

       and testing positive for drugs while on probation are not “minor” probation

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 6 of 7
       violations. Cf., e.g., Johnson v. State, 62 N.E.3d 1224, 1231 (Ind. Ct. App. 2016)

       (holding probation violations of being “out of place” for short periods of time

       were minor and, along with defendant’s low-level of intellectual functioning,

       did not support a revocation order to serve the entire suspended sentence).

       Given that a court may revoke probation for a single probation violation, the

       trial court was well within its discretion when it sanctioned Woliung by

       ordering her to serve four years of her five-year suspended sentence. Pierce, 44

       N.E.3d at 755.


[11]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019   Page 7 of 7
