MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Sep 21 2018, 6:30 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           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
P. Stephen Miller                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark S. Lea, Jr.,                                        September 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1128
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel R. Keirns,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         02D06-1407-F4-5



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018              Page 1 of 6
[1]   Mark Lea, Jr., appeals the revocation of his probation. He argues that the

      evidence was insufficient to support the revocation and that the terms of his

      probation required that he be given another chance before revocation. Finding

      the evidence sufficient and no other error, we affirm.


                                                     Facts
[2]   On November 10, 2014, Lea pleaded guilty to Level 4 felony theft. Pursuant to

      the plea agreement, Lea was sentenced to six years, with four of those years

      suspended to probation.


[3]   On August 25, 2015, Lea was assigned to the reentry court community

      transition program. The participation agreement for that program included

      requirements regarding paying fees, obeying all laws, and maintaining good

      behavior. On December 7, 2015, the trial court found that Lea had violated the

      terms of his placement in the program by, among other things, providing a

      diluted drug screen. The trial court ordered that Lea participate with substance

      abuse treatment. In February 2016, Lea was placed on a zero tolerance policy

      for attendance at the program.


[4]   On March 7, 2016, the State filed a petition to revoke Lea’s placement in the

      program. The State alleged that Lea had failed to maintain good behavior by

      committing three new offenses, including resisting law enforcement, operating a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018   Page 2 of 6
      motor vehicle without a license, and unsafe lane movement without a signal. 1

      The State also alleged that Lea had failed to report for a urine drug screen on

      March 4, 2016, and had failed to pay fees as instructed. The petition recounted

      a total of eighteen previous violations of the program.


[5]   On March 8, 2016, the trial court found that Lea had violated the terms and

      conditions of the reentry court program, terminated his participation in that

      program, and referred him to the probation department for further proceedings.

      On March 10, 2016, the State filed a petition to revoke probation, based on the

      new criminal charges and Lea’s termination from the reentry court program.

      Later that same day, the State filed an amended revocation petition, adding that

      Lea had provided a positive drug screen on March 1, 2016, failed to report for a

      drug screen on March 4, 2016, and failed to pay required fees.


[6]   On July 1, 2016, Lea admitted to the allegations contained in the revocation

      petition. On August 3, 2016, the trial court revoked a portion of Lea’s

      suspended sentence, ordering him to serve two years with the Department of

      Correction with the remainder suspended to probation.


[7]   On February 2, 2018, after Lea had again begun serving probation, the State

      filed a petition to revoke. The State alleged that Lea had provided a positive

      drug screen on January 2, 2018, and had failed to attend and complete required

      counseling. On February 7, 2018, the State filed an amended petition to




      1
          The State eventually brought separate criminal charges against Lea for these offenses.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018           Page 3 of 6
       revoke, adding an allegation that Lea had committed a new offense of carrying

       a handgun without a license.2


[8]    At the hearing on the petition to revoke, Lea admitted that he had provided a

       positive drug screen. Additionally, a police officer testified regarding the

       circumstances surrounding the handgun allegations. The trial court found that

       Lea had violated the terms and conditions of probation by providing a positive

       drug screen and failing to maintain good behavior. The trial court revoked his

       probation and ordered that Lea serve the two-year balance of his previously-

       suspended sentence in the Department of Correction. Lea now appeals.


                                         Discussion and Decision
[9]    Lea argues that the trial court erroneously revoked his probation because the

       evidence was insufficient and the terms of his probation agreement required

       that he be given another chance.


[10]   It is well settled that probation is a matter of grace left to the trial court’s

       discretion rather than a right to which a defendant is entitled. E.g., Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the terms

       and conditions of probation, and the trial court may revoke probation if the

       terms and conditions are violated. E.g., Castillo v. State, 67 N.E.3d 661, 663-64

       (Ind. Ct. App. 2017), trans. denied. A trial court may revoke a defendant’s




       2
           It is unclear from the record whether the State filed a criminal charge based on these allegations.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018                        Page 4 of 6
       probation for violation of a single condition of his probation. E.g., Pierce v.

       State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).


[11]   Lea focuses much of his argument on the evidence related to the handgun

       allegations. We need not consider this issue, however, as Lea admitted that he

       tested positive for marijuana while on probation. Tr. p. 9-10. One of the

       conditions of Lea’s probation was that he not use drugs. Id. at 8; Tr. Ex. 1.

       Because Lea violated this single condition of probation, the trial court was

       within its rights to revoke probation. Consequently, any alleged error regarding

       the handgun allegations was harmless.3


[12]   Lea also contends that the State and Lea entered into an agreement providing

       that if Lea used controlled substances, additional conditions may be placed on

       him rather than revoking his probation. Specifically, he directs our attention to

       a document that he signed following the January 2, 2018, positive drug screen,

       which provided as follows:


               I understand that due to continued drug use, I may be subject to
               added conditions of Allen County Adult Probation and referred
               back to court.


               Failure to follow through the added conditions of probation[] will
               result in the case being returned to court for further disposition.




       3
        Lea argues that the admission of evidence related to the handgun allegations was fundamental error. We
       disagree and maintain our conclusion that any error was harmless.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018             Page 5 of 6
       Tr. Ex. 2 (emphasis added). Initially, we note that the plain language of this

       provision does not establish that the only consequence for the positive drug

       screen would be added probation conditions. Instead, it provides that probation

       conditions may be added, and if those added conditions were violated, Lea

       could be referred back to the trial court. Nowhere does it say that the probation

       department was prohibited from seeking revocation or that the trial court was

       prohibited from entering an order to that effect.


[13]   Moreover, Lea had provided an earlier diluted screen in December 2015.

       Following that screen, he was, in fact, subject to an additional probation

       condition—he was ordered to begin attending substance abuse treatment.

       Quickly thereafter, he provided a positive screen in March 2016. In other

       words, although Lea complains that he was not given a “second chance,”

       appellant’s br. p.10, he has, in fact, been given multiple chances, as well as

       additional treatment to help him refrain from use of illegal drugs. He has not

       taken advantage of these opportunities. Under these circumstances, we find

       that the trial court did not err by revoking probation based on Lea’s most

       current positive drug screen.


[14]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018   Page 6 of 6
