MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          May 06 2020, 8:27 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Taylor Marshall,                                         May 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2471
        v.                                               Appeal from the
                                                         Fayette Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Hubert Branstetter, Jr., Judge
                                                         Trial Court Cause No.
                                                         21C01-1610-F3-771



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020                 Page 1 of 20
                                   Statement of the Case
[1]   Taylor Marshall appeals the trial court’s order revoking her probation and

      ordering her to serve the entirety of her previously-suspended sentence. We

      affirm.



                                                   Issues
[2]   Marshall raises three issues for our review, which we restate and expand as

      follows:


              I. Whether the trial court committed fundamental error in
              admitting certain hearsay evidence;


              II. Whether Marshall’s right to due process was violated when
              the trial court admitted certain hearsay evidence;


              III. Whether sufficient evidence supports the trial court’s finding
              that Marshall violated the terms of her probation; and


              IV. Whether the trial court abused its discretion by ordering
              Marshall to serve the entirety of her previously-suspended
              sentence in the Indiana Department of Correction (DOC).


                            Facts and Procedural History
[3]   On October 26, 2016, the State charged Marshall with dealing in a narcotic

      drug and conspiracy to commit dealing in a narcotic drug, both as Level 3

      felonies. On February 13, 2017, under terms of a plea agreement, Marshall

      agreed to plead guilty to dealing in a look-a-like substance as a Level 5 felony,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 2 of 20
      and, in exchange, the conspiracy charge would be dismissed. The trial court

      accepted the plea agreement and entered judgment of conviction consistent

      with the terms of the plea agreement on March 24, 2017. Marshall was

      sentenced to six years executed in the DOC to be served in the Purposeful

      Incarceration program.


[4]   On October 5, 2018, Marshall filed a motion to amend the sentencing order to

      remove the purposeful incarceration requirement because she had been placed

      on a long waiting list for that program and could not participate in other

      programs while on the waiting list. On November 21, 2018, the State and

      Marshall entered into an Agreed Sentence Modification, and Marshall’s

      sentence was subsequently modified. She was immediately released from

      incarceration to the House of Ruth program, and the three years remaining on

      her original six-year sentence was ordered served on probation, with the

      completion of the House of Ruth program a condition of probation.


[5]   Marshall performed well in the House of Ruth program, completing an

      eighteen-month program in six months. However, on July 23, 2019, Marshall

      overdosed on drugs and had to be resuscitated at Reid Hospital with the drug

      Narcan. The following day, Marshall’s probation officer, Charles Whallon,

      filed a Petition for Probation Violation Hearing, alleging that, when Marshall

      overdosed, she violated Rule #10 of the terms of her probation, which stated

      that “The defendant shall not use alcohol or illegal drugs[.]” Appellant’s App.

      Vol. II, p. 58.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 3 of 20
[6]   At some point, Officer Whallon learned from “other officers” that, on

      September 14, 2019, Marshall had visited the police department and requested

      that the police search her vehicle because Marshall believed that “bugs” or

      listening devices had been planted inside. Tr. pp. 11-12.


[7]   Marshall met with Officer Whallon at least four times after she overdosed. At

      each meeting, she admitted that she continued to use methamphetamine. In

      response to the admissions, Officer Whallon arranged for Marshall to attend in-

      patient drug treatment at a facility in Richmond, Indiana, but Marshall failed to

      show for the first appointment that was set for September 16, 2019. Marshall

      did appear at the facility on September 20, 2019, for an intake appointment, but

      she left the facility after refusing to sign required paperwork.


[8]   Marshall’s probation revocation hearing took place on September 23, 2019. On

      that day, prior to the start of the hearing, a sheriff’s deputy contacted Officer

      Whallon to tell him that Marshall was at a certain address and that she was

      behaving as if she were under the influence of drugs. Officer Whallon went to

      the address provided by the deputy and met with Marshall. He noticed that her

      behavior was “erratic” and “delusion[al].” Id. at 12. She told Officer Whallon

      that she had used drugs fifteen hours earlier. Based on the admission,

      probation officer Lindsey Tandy conducted a drug screen of Marshall just prior

      to the start of the revocation hearing. Marshall tested positive for

      methamphetamine, amphetamines, MDMA, and fentanyl. The results of the

      drug screen were initial results that had not yet been sent to a laboratory for

      confirmatory testing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 4 of 20
[9]    At the revocation hearing, the trial court allowed over Marshall’s objection

       Officer Whallon’s testimony regarding statements that Marshall made to him—

       specifically, the statements about her drug use and the incident where the police

       searched her vehicle for listening devices. The trial court also allowed over

       Marshall’s objection Officer Tandy’s testimony regarding the results of the drug

       screen that was administered immediately prior to the start of the revocation

       hearing. The State did not introduce into evidence any printed documentation

       of the failed drug screen.


[10]   At the hearing, the State argued that Marshall’s probation should be revoked

       and that she should be directed to serve her previously-suspended three-year

       sentence in the DOC. Marshall argued that she should be allowed to

       participate in inpatient treatment and that her probation should be continued.


[11]   At the conclusion of the hearing, the trial court determined that Marshall

       violated the terms of her probation, revoked her probation, and ordered her to

       serve in the DOC the remaining three years of her previously-suspended

       sentence. Marshall appeals.



                                 Discussion and Decision
                                        I. Standard of Review
[12]   Marshall challenges the trial court’s revocation of her probation. Our general

       standard of review in such cases is well-established. Probation is a favor

       granted by the State, not a right to which a defendant is entitled. Butler v. State,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 5 of 20
       951 N.E.2d 255, 259 (Ind. Ct. App. 2011). Though a defendant is entitled to

       due process in a probation revocation proceeding, he is not entitled to all the

       rights he enjoyed before the underlying criminal conviction, such as the

       applicability of the rules of evidence or an elevated burden of proof. Id. A

       defendant is, however, entitled to certain due process protections, including the

       right to confront witnesses, right to cross-examine witnesses, and right to

       representation of counsel. Ind. Code § 35-38-2-3(f) (2015); Butler, 951 N.E.2d at

       259. There must also be substantial evidence of probative value from which the

       trial court could determine based upon a preponderance of the evidence that the

       defendant violated the terms of his probation. Figures v. State, 920 N.E.2d 267,

       272 (Ind. Ct. App. 2010).


                                         II. Hearsay Evidence
[13]   Marshall contends that the trial court erroneously admitted into evidence

       certain hearsay evidence, namely, Officer Whallon’s testimony regarding the

       search of Marshall’s vehicle and Officer Tandy’s testimony regarding the results

       of Marshall’s drug screen. Marshall claims that the testimony constituted

       inadmissible hearsay which does not pass the substantial trustworthiness test.


[14]   Marshall concedes that she did not object to the testimony on grounds that it

       lacked substantial trustworthiness and states that the fundamental error doctrine

       applies. The fundamental error doctrine is extremely narrow and applies only

       when the error amounts to a blatant violation of basic principles, the harm or

       potential for harm is substantial, and the resulting error denies the defendant


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 6 of 20
       fundamental due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App.

       2010), trans. denied. And, even where an error in the admission of evidence has

       been made—whether or not sufficient objection was raised to its admission—

       we will not reverse the trial court where the error was harmless. Ind. Trial Rule

       61.


[15]   “The due process right applicable in probation revocation hearings allows for

       procedures that are more flexible than in criminal prosecution.” Reyes v. State,

       868 N.E.2d 438, 440 (Ind. 2007) (citing, inter alia, Morrissey v. Brewer, 408 U.S.

       471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). Thus, evidence may be

       deemed admissible for the purposes of probation revocation proceedings that

       would not be admissible during a criminal trial. Id.; see also Ind. Evidence Rule

       101(d)(2) (providing that, except for rules concerning privilege, the Rules of

       Evidence do not apply in numerous criminal-related proceedings, including

       those dealing with probation revocation).


[16]   As our supreme court noted, however, “[t]his does not mean that hearsay

       evidence may be admitted willy-nilly[.]” Reyes, 868 N.E.2d at 440. Because the

       right to confront accusers still applies to defendants in probation revocation

       proceedings, albeit in a less stringent form than in a criminal trial, we apply the

       “substantial trustworthiness” test to determine whether hearsay evidence is

       admissible during a probation revocation hearing. Id. at 441. The substantial

       trustworthiness test requires that the State demonstrate “good cause” for using

       hearsay rather than live testimony during a probation revocation proceeding.

       Robinson v. State, 955 N.E.2d 228, 232 (Ind. Ct. App. 2011). The good cause

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 7 of 20
       requirement is met so long as the hearsay bears substantial guarantees of

       trustworthiness. Id. In reaching such a determination, the trial court must

       “evaluate the reliability of the hearsay evidence” and, ideally, “explain on the

       record why the hearsay is reliable and why that reliability is substantial enough

       to supply good cause for not producing live witnesses.” Id. (citing Reyes, 868

       N.E.2d at 441-42). Failure to provide an explanation on the record is not fatal

       where the record supports such a determination. See Reyes, 868 N.E.2d at 442

       (affirming trial court’s admission of affidavits in probation revocation despite

       the court’s failure to provide detailed explanation on record because evidence

       supported substantial trustworthiness of affidavits).


[17]   In this case, Marshall’s failure to object to the testimony in question on grounds

       that it lacked substantial trustworthiness deprived the trial court of the

       opportunity to make a substantial trustworthiness determination. As such, on

       appeal, Marshall must not only demonstrate that the hearsay testimony of

       Officers Whallon and Tandy was not substantially trustworthy, but also that

       Marshall was so prejudiced by its admission into evidence that this denied her

       fundamental due process protections. Marshall cannot satisfy her burden.


[18]   Regarding Officer Whallon’s testimony—that Marshall drove to a police station

       and asked the officers to search her vehicle for listening devices—Marshall

       maintains that said testimony is not substantially trustworthy because “[Officer]

       Whallon never identified the officers from whom he obtained the information

       regarding the September 14th incident, the department with which the officers

       served, the basis for those unnamed officers’ suspicions, or anything else which

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 8 of 20
       would render the officers’ statements substantially trustworthy.” Appellant’s

       Br. p. 13. However, even if we were to determine that Officer Whallon’s

       testimony was not substantially trustworthy, we cannot say that the testimony

       amounted to fundamental error because Marshall has not shown any harm

       resulting from the testimony and has failed to demonstrate that the testimony

       prejudiced her substantial rights.


[19]   We now turn to Officer Tandy’s testimony regarding the results of Marshall’s

       drug screen. Marshall’s challenge to the trustworthiness of the testimony is as

       follows: “the test had not yet been submitted to a laboratory for analysis by an

       expert[;]” “[Officer] Tandy did not know the accuracy rate of the preliminary

       results or whether such results ever produced false positives[;]” she “did not

       detail her experience with such tests” and did not testify to any “specialized

       training in analyzing urine [drug] test results[;]” the State “offered no other

       evidence establishing the reliability of the testing or [Officer] Tandy’s skill in

       reading the results[;]” and the manufacturer of the test was not identified.

       Appellant’s Br. pp. 13-14. Despite these assertions, we find that the evidence

       presented at the revocation hearing supports a determination that the testimony

       offered by Officer Tandy was substantially trustworthy.


[20]   First, Officer Whallon testified, without objection from Marshall, that on the

       day of Marshall’s probation revocation hearing and prior to the start of the

       hearing, he spoke with Marshall; her behavior seemed “erratic” and

       “delusion[al;]” and she admitted to him that she had used methamphetamine

       “fifteen hours prior.” Tr. p. 12. Next, Officer Tandy testified that, shortly

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 9 of 20
       before the start of the probation revocation hearing, she performed a drug

       screen on Marshall. Officer Tandy further testified that she followed the

       “normal protocol” for “obtaining the urine sample[,]” and she described how

       she administered the test as follows: “We went into the restroom. . . .

       [Marshall] washed her hands beforehand . . . [. I] observed her screen in the

       cup, read the temperature[;] . . . it was valid and then waited at least two

       minutes and then read the results.” Id. at 17. Officer Tandy then told the trial

       court that Marshall tested positive for “[methamphetamine, amphetamines,

       MDMA and fentanyl.” Id. at 18. We, therefore, find that the record supports a

       determination that Officer Tandy’s testimony regarding Marshall’s positive

       drug screen results was substantially trustworthy, and we conclude that the trial

       court did not abuse its discretion when it allowed the officer’s testimony.

       Moreover, even assuming, arguendo, that the court did abuse its discretion in

       admitting the testimony, we cannot say that the testimony amounted to

       fundamental error because, as with Officer Whallon’s testimony, Marshall has

       not shown any harm resulting from Officer Tandy’s testimony and has failed to

       demonstrate that the testimony prejudiced her substantial rights.


                                       III. Due Process Rights
[21]   Next, Marshall contends that the trial court abused its discretion by allowing

       into evidence the probation officers’ respective hearsay testimony because,

       according to Marshall, the testimony resulted in a violation of her rights to due

       process. Specifically, Marshall argues that she was denied her due process

       rights to adequately confront and cross-examine (1) the police officers who told

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 10 of 20
       Officer Whallon that Marshall asked them to search her vehicle, and (2) Officer

       Tandy regarding the officer’s testimony about the positive drug screen.

       Marshall further argues that the State failed to provide her with notice that it

       intended to offer into evidence Marshall’s request for the search and the results

       of the drug screen. We take each argument in turn.


[22]   “Although probationers are not entitled to the full array of constitutional rights

       afforded defendants at trial, ‘the Due Process Clause of the Fourteenth

       Amendment [does] impose [ ] procedural and substantive limits on the

       revocation of the conditional liberty created by probation.’” Debro v. State, 821

       N.E.2d 367, 374 (Ind. 2005) (citing Cox v. State, 706 N.E.2d 547, 549 (Ind.

       1999) (citing Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d

       636 (1985))). The minimum requirements of due process that inure to a

       probationer at a revocation hearing include: “(a) written notice of the claimed

       violations of probation; (b) disclosure of the evidence against him; (c) an

       opportunity to be heard and present evidence; (d) the right to confront and

       cross-examine adverse witnesses . . . .” Woods v. State, 892 N.E.2d 637, 640

       (Ind. 2008); see also Ind. Code § 35-38-2-3(f) (providing in pertinent part that a

       probationer “is entitled to confrontation, cross-examination, and representation

       by counsel”).


[23]   “Nonetheless, confrontation rights in the context of probation revocation are

       not as extensive as they are in criminal trials.” Knecht v. State, 85 N.E.3d 829,

       833 (Ind. Ct. App. 2017). Indiana Evidence Rule 101(d)(2) allows for the

       admission of evidence during probation revocation hearings that would not be

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 11 of 20
       permitted in a full-blown criminal trial. We also observe that our supreme

       court has noted that the United States Supreme Court’s decision on the Sixth

       Amendment right to confrontation in criminal trials, Crawford v. Washington,

       541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d. 177 (2004), is not implicated in

       probation revocation hearings because probation revocation hearings are not

       criminal trials. Reyes, 868 N.E.2d at 440 n.1.


                 A. Confrontation and Cross-Examination of the Police Officers

[24]   Marshall argues that she was denied her due process rights to confront and

       cross-examine the police officers who searched her vehicle. However, we

       already have determined that Marshall failed to demonstrate that Officer

       Whallon’s testimony regarding the incident prejudiced her substantial rights.

       Thus, we decline to find that Marshall was denied her right to confront and

       cross-examine the police officers.


                    B. Confrontation and Cross-Examination of Officer Tandy

[25]   As for Marshall’s argument that she was denied her right to confront and cross-

       examine Officer Tandy regarding the results of the drug screen, to the contrary,

       the record establishes that Marshall was able to confront and cross-examine

       Officer Tandy. Specifically, Marshall questioned her as to any training she

       received in how to administer and read the results of the urine drug screen, the

       accuracy of the results, and whether the screen had ever produced false

       positives. Thus, Marshall was not denied her due process rights to confront and

       cross-examine Officer Tandy.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 12 of 20
                                         C. Disclosure of Evidence

[26]   Marshall further argues that the trial court violated her right to due process

       when it allowed the State to use evidence against her (i.e., the probation

       officers’ respective testimony in question) even though that evidence was not

       provided to Marshall prior to the start of the probation revocation hearing.

       While we agree that Marshall was not informed of the evidence in question

       prior to the start of the probation revocation hearing, we conclude that,

       altogether, Marshall had notice that her drug use would be an issue at her

       probation revocation hearing.


[27]   As to the evidence regarding the search of Marshall’s vehicle, we note that it is

       unclear from the record the significance of the evidence and how the evidence

       factored into the determination that Marshall violated her probation.

       Regarding the evidence of the drug screen result, the record reveals that on July

       23, 2019, Marshall was admitted to the hospital for a drug overdose and was

       administered a drug to resuscitate her. At each of four meetings between

       Marshall and Officer Whallon that occurred after her overdose, Marshall told

       Officer Whallon that she continued to use methamphetamine. On the day of

       her probation revocation hearing, she met with Officer Whallon and admitted

       to him that she had used methamphetamine in the last fifteen hours. Prior to

       the start of the hearing, Marshall submitted to a drug screen. While the timing

       of the drug screen may not have left much time for Marshall to mount a defense

       of the results of the screen, Marshall had to believe that evidence of her drug

       use would be an issue at her hearing given her prior admissions to her probation

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 13 of 20
       officer of her continued drug use. Finally, we note that Marshall did not

       request a continuance or additional time for preparation at the time the

       evidence of her drug screen results was introduced. Based upon the foregoing,

       we cannot conclude that Marshall’s due process rights were violated.


                                 IV. Sufficiency of the Evidence
[28]   Marshall next contends that the evidence was insufficient to revoke her

       probation because the State failed to introduce the terms of her probation into

       evidence at the probation revocation hearing either through testimony or an

       exhibit. Thus, according to Marshall, without proof of the terms of her

       probation, the State could not prove a violation of those terms.


[29]   We review insufficiency of evidence claims in a probation proceeding as we do

       any other sufficiency of the evidence question. Smith v. State, 727 N.E.2d 763,

       765 (Ind. Ct. App. 2000). We will not reweigh evidence or judge credibility of

       witnesses. Id. We look only to the evidence that supports the judgment and

       any reasonable inferences flowing therefrom. Pitman v. State, 749 N.E.2d 557,

       559 (Ind. Ct. App. 2001), trans. denied.


[30]   We also note that probation revocation hearings are civil in nature, and that the

       State need only prove the allegations by a preponderance of the evidence.

       Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). Further, in civil cases, a

       judicially noticed fact is taken as conclusively establishing that fact. Ind.

       Evidence Rule 201(a)(1). A trial court may take judicial notice of the records of

       a court of this state, whether requested to do so, or not. Evid. R. 201(b)(5), (c).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 14 of 20
       In addition, judicial notice may be taken at any stage of the proceeding. Evid.

       R. 201(d).


[31]   Marshall argues that the State failed to introduce the specific conditions of her

       probation into evidence at the probation revocation hearing. The State’s

       petition to revoke Marshall’s probation stated that Marshall violated “Rule

       #10” of the terms of her probation, and that “Rule #10” specified, “The

       defendant shall not use alcohol or illegal drugs.” Appellant’s App. Vol. II, p.

       58. The petition alleged Marshall “violated the terms of the probation

       established herein in that: The defendant overdosed on 7/23/2019 and was

       taken to Reid Hospital. Defendant received Narcan which reversed the effects

       of the illicit substances ingested.” Id.


[32]   At the outset of Marshall’s initial hearing, held on August 23, 2019, the trial

       court asked Marshall if she had received a copy of the petition, and Marshall

       replied in the affirmative. The court then proceeded to read the allegations of

       the revocation petition on the record, stating the following:


               Looking at the petition it’s a petition for probation violation and
               it alleges that on 11-21-2018, you were placed on probation for a
               period of three years after you were found guilty in 35-48-44-6(a)
               uh, dealing in a look[-]alike substance and that number Rule 10,
               stated the defendant shall not use alcohol or illegal drugs and
               then it alleges that . . . the defendant overdosed on 7-23-19, was
               taken to [a hospital] and [administered a drug] which reversed
               the effects of the substances ingested.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 15 of 20
       Tr. p. 4. Marshall cites no authority, and we are unaware of any, that requires

       the trial court to do more. Also, the condition that a defendant on probation

       should not commit an additional crime is automatically a condition of

       probation by operation of law without a specific provision to that effect. Lucas

       v. State, 501 N.E.2d 480, 481 (Ind. Ct. App. 1986); Ind. Code § 35-38-2-1(b)

       (2012).


[33]   Finally, the trial court clearly took judicial notice of the contents of the file in

       this case. The record reveals that the file contains the original plea agreement,

       sentencing order, Agreed Sentencing Modification, and petition to revoke

       probation. These items conclusively established that Marshall: (1) was not to

       use illegal drugs; and (2) was still on probation at the time of the alleged

       probation violation. When combined with the testimony introduced at the

       probation revocation hearing, we find that there was sufficient evidence

       presented from which the trial court could determine the terms of Marshall’s

       probation and then find that Marshall violated the terms.


                                                V. Sentence
[34]   Marshall last contends the trial court abused its discretion in ordering her to

       serve her entire three-year suspended sentence in the DOC. Citing that she was

       able to maintain sobriety for some period of time before her relapse, she argues

       that the trial court’s “sanction was overly harsh,” and that the trial court should

       have ordered her to attend inpatient treatment. Appellant’s Br. p. 20.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 16 of 20
[35]   “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). Probation revocation is a two-step process. First, the trial court must

       determine that a violation of a condition of probation actually occurred. Woods,

       892 N.E.2d at 640. Second, the court must determine if the violation warrants

       revocation of probation. Id.


               “We review a trial court’s sentencing decision in a probation
               revocation proceeding for an abuse of discretion.” Puckett v.
               State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (citing
               Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006)).
               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. A defendant cannot collaterally attack the
               propriety of an original sentence in the context of a probation
               revocation proceeding. Id. However, a defendant is entitled to
               challenge the sentence a trial court decides to impose after
               revoking probation. Id. (citing Abernathy, 852 N.E.2d at 1020
               (citing Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004) (“A
               defendant is entitled to dispute on appeal the terms of a sentence
               ordered to be served in a probation revocation proceeding that
               differ from those terms originally imposed.”))).


       Johnson v. State, 62 N.E.3d 1224, 1229-30 (Ind. Ct. App. 2016).


[36]   Under Indiana Code section 35-38-2-3(h) (2015), if a petition to revoke

       probation is filed within the defendant’s probationary period and the trial court

       finds the defendant has violated any terms of probation, the trial court may

       impose one or more of the following sanctions: (1) continue the person on

       probation, with or without modifying or enlarging the conditions; (2) extend the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 17 of 20
       person’s probationary period for not more than one year beyond the original

       probationary period; or (3) order execution of all or part of the sentence that

       was suspended at the time of initial sentencing.


[37]   Here, the record reveals that the trial court had ample basis for its decision to

       order Marshall to serve the entirety of her suspended sentence in the DOC.

       Marshall was originally sentenced to six years executed in the DOC to be

       served in the Purposeful Incarceration program. Approximately twenty-one

       months later, the State and Marshall entered into an Agreed Sentence

       Modification; Marshall’s sentence was modified; and she was immediately

       released from incarceration to the House of Ruth program, and the three years

       remaining on her original six-year sentence were ordered served on probation.

       While Marshall performed well in the House of Ruth program, she eventually

       overdosed on illegal drugs and had to be resuscitated at a hospital. Although

       Officer Whallon arranged for Marshall to be admitted to a facility for inpatient

       drug treatment, Marshall “no-showed” for her first intake appointment. Tr. p.

       10. While she did show for her second intake appointment, she refused to sign

       necessary paperwork and then left the facility. At the probation revocation

       hearing, Officer Whallon testified that Marshall told him on numerous

       occasions that she continued to use methamphetamine, and that on the day of

       her hearing, she told him she had used methamphetamine within the last fifteen

       hours. Results from a drug screen administered the day of the hearing showed

       that Marshall tested positive for methamphetamine, amphetamines, MDMA,

       and fentanyl.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 18 of 20
[38]   The trial court first showed leniency by sentencing Marshall to serve her

       executed sentence in the Purposeful Incarceration program. The trial court

       again showed leniency by allowing Marshall’s sentence to be modified,

       ordering her immediate release from prison, and suspending the remaining

       three years of her six-year sentence to probation. However, after having been

       afforded an opportunity to have her sentence suspended to probation, Marshall

       violated the terms of her probation by using illegal drugs. To the extent

       Marshall argues that she needs treatment, we note that the Indiana prison

       system offers multiple programs, including drug classes, designed to aid and

       rehabilitate inmates. Based upon the foregoing, and 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 entirety of Marshall’s suspended

       sentence.



                                               Conclusion
[39]   We find no reversible error in the trial court’s evidentiary rulings during the

       probation revocation hearing. There was sufficient evidence from which the

       trial court could properly conclude that Marshall violated the terms of her

       probation. The trial court did not abuse its discretion when it required

       Marshall, as the sanction for her probation violation, to serve the entirety of her

       suspended sentence in the DOC. The judgment of the trial court is affirmed.


[40]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 19 of 20
Robb, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020   Page 20 of 20
