      MEMORANDUM DECISION
                                                                                      FILED
      Pursuant to Ind. Appellate Rule 65(D),                                      Jun 29 2018, 9:47 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                       CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
      court except for the purpose of establishing                                     and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David W. Stone IV                                        Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana

                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Terrance D. Mitchell,                                    June 29, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1712-CR-2980
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable Mark Dudley,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               48C06-1206-FB-1077



      May, Judge.


[1]   Terrance D. Mitchell appeals the revocation of his probation. He raises two

      issues, which we restate as:

      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018                Page 1 of 9
                 1. Whether the State presented sufficient evidence to support
                    revocation; and


                 2. Whether the trial court abused its discretion by ordering
                    Mitchell to serve two years of his six-year suspended sentence.


      We affirm.



                                Facts and Procedural History
[2]   On August 20, 2012, pursuant to a plea agreement, Mitchell pled guilty to Class

      B felony unlawful possession of a firearm by a serious violent felon, 1 Class C

      felony carrying a handgun without a license, 2 and Class A misdemeanor

      possession of marijuana. 3 The trial court imposed a twelve-year sentence, with

      six years suspended to probation. Mitchell was released from the Department

      of Correction (“DOC”) on June 29, 2017. On August 16, 2017, Mitchell signed

      the “Participation Agreement” for “Madison County Reentry Court” 4 as a

      condition of his probation. (App. Vol. II at 74.)




      1
          Ind. Code § 35-47-4-5 (2006).
      2
          Ind. Code § 35-47-2-1 (2011).
      3
          Ind. Code § 35-48-4-11 (Mar. 15, 2012).
      4
       The recordand briefs use “Reentry Court,” (App. Vol. II at 74), “Problem Solving Court,” (Tr. at 13), and
      “problem solving court reentry program,” (Br. of Appellee at 6), interchangeably when referring to the
      probation services offered to Mitchell during the pendency of this case. For clarity, we refer to the program
      as the Reentry Program.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018                Page 2 of 9
[3]   Chris Lanane is the “coordinator of the Problem Solving Courts in Madison

      County.” (Tr. at 13.) On September 1, 2017, Mitchell went to see Lanane

      about his work release schedule. Lanane thought it “obvious . . . that [Mitchell]

      was just trying to circumvent everyone.” (Id. at 15.) Lanane directed Mitchell

      back to work release to resolve his issue. Mitchell “was just kind of ranting and

      raving as he left [Lanane’s] office[,] flung that outdoor open[, and] left the

      building[.]” (Id.) Later, when Lanane exited his office, he was approached by

      Angela Harless who told him a man, later identified as Mitchell, had opened

      the door and hit her. When she said, “[E]xcuse me,” (App. Vol. II at 79),

      Mitchell had responded with profanity. The door did not have a window in it.

      Lanane stated he “d[id]n’t know that [he had] ever seen anybody swing the

      door open that violently.” (Tr. at 22.) Lanane testified Mitchell’s actions while

      leaving Lanane’s office “violate[d] the [Reentry Program’s] rule of behaving

      well in society.” (Id. at 19.)


[4]   Due to Mitchell’s behavior, Lanane contacted the officer in charge of Madison

      County Work Release, Eric Chamness. Lanane requested Mitchell be placed

      on lockdown until a case manager could meet with Mitchell. When Mitchell

      arrived at the work release facility, he was informed he was on lockdown.

      Mitchell left the facility and did not return until later that day. Chamness

      testified that leaving the facility while on lockdown violates the rules of work

      release. That day, Lanane petitioned the court for a warrant for Mitchell

      because of Mitchell’s actions.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 3 of 9
[5]   On September 18, 2017, after a hearing on Lanane’s petition, the trial court

      released Mitchell back to work release and set a review hearing for September

      27, 2017. Also on September 18, 2017, during a routine strip search of the men

      in the work release facility, Mitchell refused to comply with orders given to him

      by correctional officers. Mitchell refused to keep his hands on his head and

      refused to move away from the sinks. He cursed at the officers. As the officers

      were attempting to place Mitchell in handcuffs for his noncompliance, Mitchell

      “pulled away.” (Id. at 29.) Madison County Correctional Officer Eric

      Callandrelli testified such behaviors were violations of work release policy.


[6]   The next day, presiding Reentry Court Judge Angela Sims ordered Mitchell

      remain in custody, rather than at the work release facility, due to his actions on

      September 18, 2017. On October 5, 2017, Jason Dillmon, a case manager for

      the Reentry Program, filed a “Notice of Termination Request” giving notice to

      Mitchell that he had “failed to comply with the participation agreement[.]”

      (App. Vol. II at 84.) The notice specified the two incidents on September 1 and

      the incident on September 18 as the reasons for termination.


[7]   On October 19, 2017, the State filed a notice of violation of probation because

      Mitchell had failed to complete the Reentry Program. On October 31, 2017,

      the court held an evidentiary hearing. Mitchell denied the allegations. Mitchell




      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 4 of 9
      testified he had been diagnosed as “mildly . . . mentally handicapped,” 5 (Tr. at

      38), and that condition should be considered mitigatory. Finding Mitchell had

      violated the rules for both the Reentry Program and the work release program,

      the trial court found Mitchell was “no longer eligible to participate in Re-Entry

      Court.” (App. Vol. II at 15.) As his participation in the program was a

      condition of his probation, the trial court ordered Mitchell to serve “[t]wo (2)

      years of the previously suspended sentence[.]” (Id.) Thereafter, Mitchell was

      ordered to return to probation.



                                   Discussion and Decision
[8]   Mitchell asserts the State did not present sufficient evidence to support the

      revocation of his probation and the trial court abused its discretion in

      sanctioning him to serve two of the suspended six years of his sentence in the

      DOC.


                                         Sufficiency of Evidence
[9]   “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). “The trial court determines the conditions of probation and may revoke

      probation if the conditions are violated.” Id.




      5
        Although in his appeal Mitchell briefly alludes to this diagnosis as the underlying cause of his behavior, no
      evidence was presented to the trial court that this diagnosis precludes Mitchell’s ability to conform to the
      rules.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018                 Page 5 of 9
[10]   We review a decision to revoke probation under the abuse of discretion

       standard. Id. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances before the court. Id.

       When reviewing whether sufficient evidence supported revocation, we do not

       reweigh evidence or judge the credibility of witnesses. Morgan v. State, 691

       N.E.2d 466, 468 (Ind. Ct. App. 1998). If there is substantial evidence of

       probative value to support concluding by a preponderance of the evidence that

       the defendant has violated a term of probation, we will affirm. Menifee v. State,

       600 N.E.2d 967, 970 (Ind. Ct. App. 1992), clarified on other grounds on denial of

       reh’g, 605 N.E.2d 1207 (Ind. Ct. App. 1993).


[11]   The State presented evidence Mitchell had 1) opened a door in a manner to

       cause harm to another person, 2) left the work release facility after being placed

       on lockdown, and 3) not complied with officers’ orders during a strip search.

       Any one of these actions constitutes a violation of the rules for the Reentry

       Program. Mitchell’s completion of the Reentry Program was a condition of his

       probation.


[12]   Mitchell does not refute the actions alleged by the State. He merely argues that

       he did not intend to hit the woman on the other side of the door. He presents

       no argument as to the sufficiency of the evidence regarding the other two

       incidents. Mitchell’s arguments regarding his culpability for the door incident

       are a request for us to reweigh the evidence, which we cannot do. See, e.g.,

       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005) (appellate court will

       not reweigh the evidence from a probation revocation hearing), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 6 of 9
[13]   Based on any of the three incidents, Mitchell’s actions broke the rules of the

       Reentry Program and program management was entitled to request his

       participation in the program be terminated. We cannot say the trial court erred

       when it found termination was supported by the evidence and that said

       termination resulted in a violation of a condition of Mitchell’s probation. See

       Gosha v State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007) (a single violation is

       sufficient to support revocation).


                                                   Sanction
[14]   Once the trial court has found a violation of probation, it may do any of the

       following:


               (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) (2015). We review the court’s choice of sanction for

       an abuse of discretion, which occurs when “the decision is clearly against the

       logic and effect of the facts and circumstances.” Prewitt, 878 N.E.2d at 188.


[15]   Mitchell was on probation after being incarcerated for Class B felony unlawful

       possession of a firearm by a serious violent felon, Class C felony carrying a

       handgun without a license, and Class A misdemeanor possession of marijuana.

       As a condition of probation, Mitchell was ordered to participate in the Reentry


       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 7 of 9
       Program. Mitchell signed an acknowledgement of the rules for the Reentry

       Program on August 16, 2017.


[16]   On September 1, 2017, less than a month after starting the Reentry Program,

       Mitchell was “ranting and raving” in Lanane’s office. (Tr. at 15.) He then

       “flung th[e] outdoor open,” (id.), in a manner more violent than Lanane had

       ever seen. The door hit Harless’ arm. When she said, “[E]xcuse me,” (App.

       Vol. II at 79), rather than apologize, Mitchell responded with profanity.

       Because of these actions, Lanane contacted the work release program personnel

       and requested Mitchell be placed on lockdown until the situation could be

       resolved. When Mitchell was told of the lockdown, he nevertheless left the

       facility. On September 18, 2017, during a strip search, Mitchell refused to

       comply with officers’ orders about where to put his hands and where to stand.

       When the officers attempted to place Mitchell in handcuffs due to this

       noncompliance, Mitchell resisted.


[17]   Mitchell had broken the Reentry Program’s rules three times. This pattern of

       behavior led the Reentry Program to request his participation in the program be

       terminated. That participation was a condition of Mitchell’s probation. The

       trial court expressed concern about how quickly Mitchell had encountered

       problems conforming to the rules of the Reentry Program:


               Well as I said, the timing makes a difference. Uh it wasn’t a
               stellar start and uh clearly sending you back there is only a recipe
               for having it repeated because there is some issue that you have
               that isn’t addressed and I’m not sure what that is.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 8 of 9
       (Tr. at 44.) While Mitchell requested he be allowed to serve his probation on

       in-home detention or some other program, the trial court dismissed that idea

       because of how quickly Mitchell had run into problems conforming to the rules

       and supervision. As such, we find no abuse of discretion in the trial court’s

       order for Mitchell to serve two years of his suspended six-year sentence in the

       DOC. See Sanders, 825 N.E.2d at 957 (given “ample basis for its decision,” a

       trial court’s order to serve a suspended sentence is not an abuse of discretion).



                                               Conclusion
[18]   The State presented sufficient evidence Mitchell acted in ways to support

       termination from the Reentry Program and that such termination was a

       violation of his probation. Additionally, the trial court did not abuse its

       discretion when it ordered Mitchell to serve two years of the six-year suspended

       sentence. Accordingly, we affirm.


[19]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2980 | June 29, 2018   Page 9 of 9
