      MEMORANDUM DECISION
                                                                               FILED
      Pursuant to Ind. Appellate Rule 65(D),                              Apr 17 2018, 9:19 am
      this Memorandum Decision shall not be                                    CLERK
      regarded as precedent or cited before any                            Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jennifer A. Joas                                         Curtis T. Hill, Jr.
      Madison, Indiana                                         Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joseph J.G. Fuernstein,                                  April 17, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1711-CR-2769
              v.                                               Appeal from the
                                                               Dearborn Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      James D. Humphrey, Judge
                                                               Trial Court Cause No.
                                                               15C01-1501-F5-7



      Kirsch, Judge.


[1]   Joseph J.G. Fuernstein (“Fuernstein”) appeals the sentence imposed by the trial

      court following the revocation of his probation, contending that the trial court


      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018         Page 1 of 8
      abused its discretion when it ordered him to serve three years of his previously-

      suspended four-year sentence in the Indiana Department of Correction

      (“DOC”) without allowing him to participate in the Purposeful Incarceration

      Program (“Purposeful Incarceration”).1


[2]   We affirm.


                                 Facts and Procedural History
[3]   On July 2, 2015, Fuernstein and the State entered into a negotiated plea

      agreement, which addressed Fuernstein’s five-count information on drug-

      related charges. That same day, the trial court approved Fuernstein’s plea

      agreement and, in accordance therewith, sentenced him to six years on his

      conviction for Level 5 felony dealing in a narcotic drug, with four years

      suspended to probation, and dismissed the remaining charges. Appellant’s App.

      Vol. II at 67. Terms of Fuernstein’s probation included that he not commit

      another criminal offense, not use illegal controlled substances, report to his

      probation officer as directed, and submit to a substance abuse evaluation and

      comply with all treatment recommendations. Id. at 67-70. Soon after

      Fuernstein was placed on probation, he committed several violations, including

      misdemeanor driving offenses in Ohio, testing positive for cocaine, failing to




      1
        Placement in the Purposeful Incarceration Program at the DOC includes an “intensive substance abuse
      treatment” component. See http://www.in.gov/idoc/2798.htm (last viewed on Apr. 5, 2018). This program
      “supports the [DOC] and the Judiciary to get addicted offenders the treatment that they need and work
      collaboratively to support their successful re-entry into society.” Id.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018       Page 2 of 8
      comply with substance abuse treatment, and failing to report to Ohio Parole as

      directed. Id. at 79, 82. The State requested a hearing on the alleged probation

      violations.


[4]   At an August 29, 2017 evidentiary hearing, Fuernstein admitted to having

      violated his probation. Id. at 86. A disposition hearing was held on October

      30, 2017, during which the parties agreed that a sanction of three years of

      incarceration was appropriate for Fuernstein’s violations and that further

      probation would be terminated. Tr. Vol. II at 5. As part of his sentence,

      Fuernstein requested Purposeful Incarceration so that he could address his

      substance addiction. Id. at 4-5. The State did not recommend that Fuernstein

      participate in Purposeful Incarceration, but agreed to leave that determination

      to the trial court’s discretion. Id. at 5-6. Fuernstein’s probation officer agreed

      that Fuernstein had a substance abuse problem but said that Fuernstein was not

      the proper candidate for Purposeful Incarceration. Id. at 6. The trial court

      revoked Fuernstein’s probation, denied his request to be placed in Purposeful

      Incarceration, and ordered him to serve three years of his previously-suspended

      four-year sentence in the DOC, with future probation terminated. Fuernstein

      now appeals.


                                     Discussion and Decision
[5]   We begin by noting that probation revocation is a two-step process. Johnson v.

      State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016) (citing Woods v. State, 892

      N.E.2d 637, 640 (Ind. 2008)). First, the trial court “must make a factual


      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 3 of 8
      determination that a violation of a condition of probation actually occurred.”

      Id. (citing Woods, 892 N.E.2d at 640). Second, if a violation is proven, “then

      the trial court must determine the appropriate sanctions for the violation.”

      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Here, Fuernstein does not

      challenge the trial court’s finding that he violated the terms of his probation.

      Instead, he contends that the trial court abused its discretion by imposing the

      sanction of serving three of the previously-suspended four years of probation in

      the DOC without allowing him to participate in Purposeful Incarceration.


[6]   “We review a trial court’s sentencing decision in a probation revocation

      proceeding for an abuse of discretion.” Johnson, 62 N.E.3d at 1229. “An abuse

      of discretion occurs if the trial court’s decision is against the logic and effect of

      the facts and circumstances before the court.” Id. at 1230. A trial court has

      “considerable leeway in deciding how to proceed” when a defendant violates

      probation. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013)

      (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans. denied. It may (1)

      continue the defendant on probation; (2) extend the probationary period for not

      more than one year beyond the original period; or (3) order all or part of a

      previously-suspended sentence to be executed. Ind. Code § 35-38-2-3(h).

      “‘However, even a probationer who admits the allegations against him must

      still be given an opportunity to offer mitigating evidence suggesting that the

      violation does not warrant revocation.’” Johnson, 62 N.E.3d at 1229 (quoting

      Woods, 892 N.E.2d at 640).




      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 4 of 8
[7]   Here, where the State and Fuernstein agreed that he would serve three years of

      his previously-suspended four-year sentence in the DOC, Fuernstein’s appellate

      challenge is to the trial court’s denial of his request to be placed in Purposeful

      Incarceration. Purposeful Incarceration is a project with the Indiana Court

      Systems, through which the DOC “works in collaboration with Judges who can

      sentence chemically addicted offenders and document that they will ‘consider a

      sentence modification’ should the offender successfully complete [a DOC]

      Therapeutic community.” Marley v. State, 17 N.E.3d 335, 338 n.1 (Ind. Ct.

      App. 2014) (quoting http://www.in.gov/idoc/2798.htm (last viewed on Apr.

      5, 2018)), trans. denied.


[8]   During the disposition hearing, Fuernstein expressed a desire to both participate

      in Purposeful Incarceration and have language added to his abstract of

      judgment noting that the trial court would “consider a possible [sentence]

      modification at a later time.” Tr. Vol. II at 5. The State responded, saying:


              The State is agreeable to revoking three years and terminating
              probation in this cause. The State would not be recommending
              purposeful incarceration and would leave it to the Court’s
              discretion. The State’s concern is [the] nature of the underlying
              charge, which is dealing in a narcotic drug and the multiple of
              the violations [sic] which started, frankly, immediately upon his
              release, and some of which is alleged, and now is admitted to,
              was that between being released in February of ’17 [he] did not
              comply with substance abuse treatment, which is what he’s
              asking the Court here for today.


      Id. at 5-6. Fuernstein’s probation officer added:


      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 5 of 8
              Your Honor, we have no objection to the Court indicating
              substance abuse treatment on the abstract, just as a
              recommendation, but I also agree with [the State]. You know,
              we’re not seeking any type of a modification of sentence as a
              result of Mr. Fuernstein completing a program within the
              Department of Corrections. However, I don’t think there’s any
              question that there is a substance abuse issue here and we would
              like to see him receive some type of treatment while he is in the
              [DOC] and, if that is indicated on the abstract, whatever level of
              substance abuse treatment that he receives when he’s in [the
              DOC] would be up to them at that point, but there would be no
              recommendation for modification of his sentence, Your Honor,
              even if they did place him in purposeful [sic] and he filed a
              motion with this Court. We would not be in agreement with
              that.


      Id. at 6.


[9]   Fuernstein’s ex-wife, Devon, was the only person who testified during the

      disposition hearing. She explained that, following a failed surgery, Fuernstein

      had become addicted to opiates to manage the pain in his back. Fuernstein’s

      addiction caused him to become depressed and withdraw from Devon and their

      children, and the couple’s marriage broke up. Id. at 8. Devon testified that she

      had known Fuernstein for years, and, when sober, he was a great man, a great

      father, and one of her best friends. Id. at 9. When asked if Fuernstein would

      benefit from Purposeful Incarceration, Devon said that she hoped he would. Id.

      She then said, “I don’t know. There are things that I thought he should have

      done when he was out last time that he didn’t do for whatever reason and I

      don’t know those reasons. That’s on him.” Id.



      Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 6 of 8
[10]   At the close of the disposition hearing, the trial court accepted the parties’

       agreement that Fuernstein serve three years in the DOC and that probation

       following his sentence be terminated. As support for that decision, the trial

       court noted Fuernstein’s criminal history as outlined in his PSI, “the basis for

       [his] violation and the timing of the violation that we have here,” and his “lack

       of cooperation with Ohio Parole authorities.” Id. at 12. Most significant to the

       trial court’s consideration was Devon’s statement that it was time for

       Fuernstein “to take responsibility and to grow up.” Id. The trial court noted:


               Sometimes people come into this courtroom in cases like this and
               they think that the best thing to do is to take the easy way out. I
               think that is a mistake, especially in a case like this. So, I’m
               denying the request for purposeful incarceration, because I am
               concerned, based upon what I’ve heard here today, that Mr.
               Fuernstein’s going to use that as an excuse for an early out.
               Early out is not what we’re seeking here today. We’re trying to
               seek a way to get this addressed and to get it dealt with. I will
               recommend that Mr. Fuernstein be considered for appropriate
               counseling while he is in the [DOC]. I will put that in the
               sentencing order and in the abstract. But the purposeful
               incarceration, on the issue of modification, that I will not accept.


       Id. at 12-13.


[11]   Here, the trial court took into consideration Devon’s testimony and the

       statements of both the State and Fuernstein’s probation officer, and it denied

       Fuernstein’s request to participate in Purposeful Incarceration. The trial court’s

       determination that Fuernstein serve three years in the DOC with “substance

       abuse treatment,” but without participation in Purposeful Incarceration is not


       Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 7 of 8
       clearly against the logic and effect of the facts and circumstances. Appellant’s

       App. Vol. II at 90.


[12]   Affirmed.


[13]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1711-CR-2769| April 17, 2018   Page 8 of 8
