Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                       Sep 30 2014, 9:36 am
any 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:

MARK SMALL                                         GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   MONIKA PREKOPA TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RUSSELL MURRAIN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 54A04-1403-CR-93
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                 APPEAL FROM THE MONTGOMERY SUPERIOR COURT
                          The Honorable David A. Ault, Judge
                           Cause No. 54D01-1304-FD-1294



                                       September 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On April 12, 2013, Appellee-Plaintiff the State of Indiana (“State”) charged

Appellant-Defendant Russell Murrain with Class D felony possession of a syringe, Class D

felony possession of a narcotic drug, and Class A infraction operating without insurance.

Murrain was subsequently placed on probation after he pled guilty to one count of Class D

felony possession of a narcotic drug. Soon thereafter, Murrain was alleged to have violated

the terms of his probation. Following a probation revocation hearing, the trial court found

that Murrain had violated the terms of his probation by failing to report to and cooperate with

his probation officer as directed, failing to enroll in a home detention program within seven

days, and committing the new offense of Class D felony possession of a syringe. On appeal,

Murrain contends that the trial court abused its discretion in ordering him to serve the

remaining 1075 days of his previously-suspended, three-year sentence.             Concluding

otherwise, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       On April 12, 2013, the State charged Murrain with Class D felony possession of a

syringe, Class D felony possession of a narcotic drug, and Class A infraction operating

without insurance. On August 8, 2013, Murrain pled guilty to Class D felony possession of a

narcotic drug. In exchange for Murrain’s guilty plea, the State agreed to dismiss the

remaining charges and to recommend that Murrain’s sentence be served on electronically

monitored home detention. The trial court accepted Murrain’s guilty plea and sentenced

Murrain to three years of incarceration, with credit for time served and the remainder

                                              2
suspended to probation. Pursuant to the terms of his probation, Murrain was ordered to

report to and cooperate with his probation officer as directed. Murrain was also ordered to

serve one year on home detention and to enroll in home detention within seven days.

        On August 30, 2013, the State filed a petition to revoke or modify probation, in which

it alleged that Murrain had failed to report to his probation officer and to enroll in a home

detention program within seven days as directed. That same day, the trial court issued a

warrant for Murrain’s arrest. Murrain was subsequently charged with the new offense of

Class D felony possession of a syringe after he was found to be in possession of a

hypodermic syringe when the above-mentioned arrest warrant was served on September 20,

2013.

        The trial court conducted a combined guilty plea and probation revocation hearing on

February 20, 2014. During the probation revocation hearing, Murrain pled guilty to the Class

D possession of a syringe charge and admitted that he had violated the terms of his probation

by failing to report to his probation officer as directed and to enroll in the home detention

program within seven days. At the conclusion of the hearing, the trial court found that

Murrain had violated the terms of his probation by failing to report to his probation officer as

directed, failing to enroll in a home detention program within seven days, and committing the

new offense of Class D felony possession of a syringe. Upon finding that Murrain had

violated the terms of his probation, the trial court revoked Murrain’s probation and ordered




                                               3
him to serve the remaining 1075 days of his previously-suspended, three-year sentence.1 This

appeal follows.

                                 DISCUSSION AND DECISION

        Murrain contends that the trial court abused its discretion in ordering him to serve his

entire previously suspended, three-year sentence.

               Probation is a matter of grace left to trial court discretion, not a right to
        which a criminal defendant is entitled. The trial court determines the
        conditions of probation and may revoke probation if the conditions are
        violated. 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. If this discretion were not afforded to trial courts and sentences
        were scrutinized too severely on appeal, trial judges might be less inclined to
        order probation to future defendants. Accordingly, a trial court’s sentencing
        decisions for probation violations are reviewable using the abuse of discretion
        standard. An abuse of discretion occurs where the decision is clearly against
        the logic and effect of the facts and circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks omitted).

                 A probation revocation hearing is in the nature of a civil proceeding.
        Therefore, an alleged violation of probation only has to be proven by a
        preponderance of the evidence. When we review the determination that a
        probation violation has occurred, we neither reweigh the evidence nor reassess
        witness credibility. Instead, we look at the evidence most favorable to the
        [trial] court’s judgment and determine whether there is substantial evidence of
        probative value supporting revocation. If so we will affirm.

Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (citations and quotations

omitted).

        Indiana Code section 35-38-2-3 provides, in relevant part, as follows:


        1
            With respect to the new Class D felony possession of a syringe charge, the trial court sentenced
Murrain to a term of three years and ordered that the sentence be served consecutive to the sentenced imposed
relating to the probation violation.
                                                     4
       (a) The court may revoke a person’s probation if:
                (1) the person has violated a condition of probation during the
                probationary period;
                                               ****
       (h) 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.
                (3) Order execution of all or part of the sentence that was suspended
                at the time of initial sentencing.

The violation of a single condition of probation is sufficient to revoke probation. Wilson v.

State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

       Here, Murrain admitted, and the trial court found, that he violated the terms of his

probation by failing to report to his probation officer and to enroll in the home detention

program within seven days. The trial court also found that Murrain had violated the terms of

his probation by committing the new offense of Class D felony possession of a syringe. In

ordering Murrain to serve his previously-suspended, three-year sentence, the trial court stated

the following:

       Last August this Court placed you on suspended sentence with the terms to be
       that you were to be on home detention, and um, released from custody on the
       assurances that that would happen and it did not. So that was pretty consistent
       with the track record that you’ve established in the local criminal justice
       system from your juvenile days on up to your adult days in that there have been
       multiple probations, and those have been violated over and over, with no
       apparent progress on your part toward addressing your issues and dealing with
       them effectively. Now you sat for a longer period of time and have suggested
       today a spiritual awakening that occurred in the jail and I’m sure you
       understand that those are always highly suspect, but it sounds good, and
       whether its sincere and lasting is an open chapter at this point, so if it’s
                                             5
        genuine and real I commend you because it’s going to serve you well, but it
        doesn’t change the past. No community based supervision has been lasting or
        effective and that’s what the Court accepted with the last plea agreement,
        which called for home detention in lieu of any executed time, so that’s why
        you were on a suspended sentence. Given the immediate failure of that, the
        only alternative is to have you serve out the sentence for Possession of a
        Narcotic Drug, and you’ll be given credit for the time you originally had
        served, which was 20 days, with credit time, as well as the 153 days that
        you’ve accrued so far, and that will be executed time.… The Court is going to
        recommend … that you be admitted to a therapeutic community with
        Department of Corrections, which generally means the Cliff Program.[2] The
        Court will grant you a modification hearing … if you complete a therapeutic
        community, successfully, and if you maintain a clear conduct record with the
        DOC. So, Mr. Murrain, I’m placing back on, in your lap, as far as what
        happens next. You can serve out all this time and not come back out under any
        court supervision or terms, or programs, or you can take advantage of whatever
        the State will allow you to participate in and earn your way back out sooner,
        and once you do that then I think you’d be a good candidate to move on to
        something like Odyssey House. Something transitional to allow you to get
        your feet on the ground and live in a sober community, and learn how to live
        clean, because that’s, we can take the drugs away, pretty much, but you’ve got
        to acquire the skills and tools and things you need to live without them, and
        you haven’t done that yet, and you can’t do that as long as you’re going to
        associate with the using community, and that’s what’s been a constant in your
        life. So I’m going to quit talking about it, because it really comes down to a
        lot of hard [work] on your part to prove yourself, and if you’re willing to put
        that in, then you can erase a lot of this, a lot of this that has already happened
        as far as how the courts have to respond to it, but you’ve really pretty much
        closed up your options here. It will only take, it will be on you to change that
        situation by what you do after today.

Tr. pp. 34-37.

        In arguing that the trial court abused its discretion in ordering him to serve the

remaining 1075 days of his previously-suspended, three-year sentence, Murrain claims that

the trial court should have given greater consideration to his change of attitude and life.


        2
          CLIFF stands for “Clean Lifestyle is Freedom Forever” and is a specialized intensive substance
abuse   treatment program that was developed and implemented by the DOC.                             See
                                                   6
Specifically, Murrain points to the fact that he had detoxed during the time that he had been

incarcerated and had realized that he “want[ed] help” with his addiction. Tr. p. 26. In

making this claim, Murrian is merely requesting this court to substitute our judgment for that

of the trial court, which we will not do without a showing of abuse of the trial court’s

discretion. Indiana Code section 35-38-2-3(h) provides that if the trial court determines that

a person has violated the terms of their probation, the trial court may “[o]rder execution of all

or part of the sentence that was suspended at the time of initial sentencing.” (Emphasis

added). Thus, pursuant to the clear language of Indiana Code section 35-38-2-3(h), the trial

court acted within its discretion in ordering execution of the remaining 1075 days of

Murrain’s suspended sentence. Concluding that the trial court did not abuse its discretion in

ordering Murrain to serve the remaining 1075 days of his suspended sentence following his

violation of the terms of his probation, we affirm the judgment of the trial court.

        The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




http://www.in.gov/idoc/2357.htm (last visited September 15, 2014).
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