MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Jan 24 2020, 10:27 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
Ruth Johnson                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melissa Evol,                                            January 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1696
        v.                                               Appeal from the Vermillion Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert M. Hall,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         83C01-1510-F5-22



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020                  Page 1 of 8
                                                 Case Summary

[1]   Melissa Evol appeals the trial court’s imposition of her previously suspended

      sentence in the Indiana Department of Correction (“DOC”) following the

      revocation of her probation. We affirm.


                                                         Issue

[2]   The sole issue on appeal is whether the trial court abused its discretion when it

      ordered Evol to serve her previously suspended sentence in the DOC following

      her probation revocation.


                                                        Facts

[3]   On September 7, 2016, Evol pleaded guilty to burglary, a Level 5 felony; theft, a

      Level 6 felony; and maintaining a common nuisance, a Level 6 felony. Evol

      received four years in the DOC. On August 28, 2018, Evol petitioned the trial

      court to modify her sentence; the State did not object to Evol’s motion. On

      November 29, 2018, the trial court granted Evol’s petition due to Evol’s

      completion of the purposeful incarceration program. Accordingly, Evol was

      released from the DOC and was ordered to complete the remainder of her

      sentence on formal probation. 1


[4]   On April 25, 2019, the State filed a motion to revoke Evol’s probation, alleging

      that Evol tested positive for methamphetamine eight times between February




      1
          Evol’s original release from the DOC was scheduled for December 14, 2019.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020   Page 2 of 8
      15, 2019, and April 18, 2019. On June 5, 2019, the State filed a second motion

      to revoke Evol’s probation, alleging that Evol was charged in Marion County

      on May 28, 2019, with criminal recklessness with a deadly weapon, a Level 6

      felony; resisting law enforcement using a vehicle, a Level 6 felony; resisting law

      enforcement, a Class A misdemeanor; and possession of paraphernalia, a Class

      C misdemeanor.


[5]   On June 26, 2019, the trial court held a hearing on the petitions. Evol admitted

      that she tested positive for methamphetamine eight times and that she was

      using both methamphetamine and amphetamine while on probation. Evol

      testified at the hearing that she was involved in a car accident one month after

      she was released from incarceration, put on pain medication, and became

      addicted to the medication, which “helped [her] to relapse.” Tr. Vol. II pp. 10-

      11. Evol also testified that the methamphetamine was “extremely easy” for her

      to obtain after her car accident. Id. at 11. Evol testified that she was “willing to

      do anything besides prison or jail.” Id. At that time, Evol had 558 actual days

      remaining in her sentence. 2


[6]   The trial court concluded:


              [B]ecause of the opportunities that you’ve been given, and the
              truth is potentially to protect your own safety because you can’t
              control yourself outside, I am going to impose the balance of the
              sentence. I mean you’ve been given the opportunities here. That



      2
        There is some discussion in the record that the calculation of actual days remaining may not include “any
      time cut the DOC may have awarded” for successful completion of DOC programs. Tr. Vol. II p. 9.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020                  Page 3 of 8
              hasn’t worked and you are the one who has demonstrated that it
              will not work from our experience with you and so I am going to
              impose the balance of your sentence, which I believe would be –
              let’s see – 744 days, which I believe computes to 558 actual days,
              assuming you don’t lose good time credit at the Department of
              Corrections. And we will make a notation on the abstract that
              this does not count – consider any credit you may have earned
              while previously at the Department of Corrections[sic], and so
              the sentence – balance of the sentence will be ordered served and
              you will be remanded to the custody of the Sheriff for the
              execution of the sentence.


      Id. at 13-14. After Evol made one last plea with the trial court to avoid

      placement in the DOC, the trial court concluded: “we’ve tried the purposeful

      incarceration. You’ve been through the programs there. We’ve attempted

      things on probation and none of it has worked so it will be back to the

      Department of Corrections.” Id. at 15-16. Evol now appeals.


                                                   Analysis

[7]   Evol argues that the trial court abused its discretion when it ordered Evol to

      serve her remaining suspended sentence in the DOC following the revocation of

      her probation. Probation serves as an “alternative[ ] to commitment to the

      Department of Correction[,]” and is “[granted] at the sole discretion of the trial

      court.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. “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.” Votra

      v. State, 121 N.E.3d 1108, 1112 (Ind. Ct. App. 2019) (quoting Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007)).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020   Page 4 of 8
[8]    Upon determining that a probationer has violated a condition of probation, the

       trial court may “[o]rder execution of all or part of the sentence that was

       suspended at the time of initial sentencing.” I.C. § 35-38-2-3(h)(3); see Knecht v.

       State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017) (finding the trial court did not

       abuse its discretion in ordering probationer to serve his previously suspended

       sentence after the trial court revoked the probationer’s probation). Our

       Supreme Court has held that “a trial court’s sentencing decisions for probation

       violations are reviewable using the abuse of discretion standard.” Prewitt, 878

       N.E.2d at 188. An abuse of discretion occurs where the decision is clearly

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


[9]    Evol’s specific argument is that the trial court failed to consider Evol’s

       substance abuse disorder when it sentenced her to the DOC, especially in light

       of the fact that Evol is not a danger to the community. 3 In support of her

       argument, Evol points to several cases.


[10]   First, Evol compares her case to Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App.

       2012), where a panel of this Court found an abuse of discretion in revoking the

       defendant’s probation. The defendant in Ripps was convicted of child




       3
         Other than the Indiana cases discussed in our decision, Evol also points to the following to support her
       statement: (1) the best practices and recommendations made by Indiana’s experts at Indiana’s Annual Opioid
       Summits; (2) the Indiana Attorney General suing drug manufacturers and distributors for harming Indiana
       communities; (3) Indiana’s judicial branch has a website dedicated to educating the public regarding opioid
       use disorder; and (4) Indiana’s Chief Justice’s comments that “[w]e knew how to be tough on drugs, [n]ow
       we need to be smart.” See Appellant’s Reply Br. pp. 6-7. While we do not disagree that that drug abuse
       disorder is serious, we decline to use these bases to find an abuse of discretion in sentencing.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020                Page 5 of 8
       molesting, a Class C felony, and violated his probation by committing the new

       offense of residing within 1,000 feet of a public park and youth program center. 4

       Accordingly, the trial court ordered the defendant to serve the remaining

       portion of his suspended sentence—two years and two-hundred and sixty-six

       days—in the DOC.


                [The defendant] was sixty-nine years old and suffering from
                serious health issues, including terminal cancer; he was
                attempting to adhere to his probation conditions, as evidenced by
                his going to the sheriff’s office to register his new address; . . .
                and, last, [the defendant] served time in prison for a crime that
                was later vacated as violative of our constitutional ex post facto
                provision.


       Ripps, 968 N.E.2d at 328.


[11]   Evol’s case is distinguishable. Evol has not demonstrated the same level of

       commitment to adhering to her probation. Evol tested positive for

       methamphetamine eight times in two months. Moreover, Evol, at forty-three

       years old, has been given many chances in the past to conform her behavior.

       Evol’s criminal history includes many crimes of dishonesty, such as conversion,

       theft, and check deception as well as two probation violations in other cause

       numbers.




       4
         The statute codifying this offense was found to be unconstitutional as applied in State v. Pollard, 908 N.E.2d
       1145 (Ind. 2009). The terms of the defendant’s probation separately included that he was prohibited from
       living within 1,000 feet of a public park or youth program center. The State, however, only filed a probation
       violation for committing a new criminal offense and not independently for the residential violation.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020                     Page 6 of 8
[12]   Next, Evol points to a series of Indiana Supreme Court cases to support her

       arguments that the legislature and the Indiana Supreme Court “are sending a

       clear message to trial courts that non-violent offenders suffering from addiction

       should remain in the community.” Appellant’s Br. p. 11. In Livingston v. State,

       113 N.E.3d 611 (Ind. 2018), our Supreme Court found a “rare and exceptional

       case” when the defendant, after committing several drug offenses: (1) pleaded

       guilty without a plea agreement; (2) voluntarily placed herself in a county

       community corrections program; (3) used her own money and donations to

       start a home for women recovering from addiction; and (4) reported twice a

       week and took random drug screens which were all negative. Livingston, 113

       N.E.3d at 612. In Hoak v. State, 113 N.E.3d 1209 (Ind. 2018), our Supreme

       Court remanded the sentence of the defendant to the trial court, to determine if

       the defendant “[was] eligible for substance abuse treatment in a Community

       Corrections placement,” when the defendant had received no court-ordered

       substance abuse treatment. Hoak, 113 N.E.3d at 1209.


[13]   These cases, again, are distinguishable from Evol’s case. 5 Despite Evol’s

       arguments, we do not read our Supreme Court’s opinions to stand for the broad

       proposition that no drug user should be placed in the DOC for violating

       probation merely because he or she is nonviolent. Evol has failed to




       5
         Evol concedes in her brief that she is “not comparing herself personally to [the defendant in Livingston] who
       obtained many positive accomplishments prior to her sentencing,” and “because [she] has received drug
       treatment through the purposeful incarceration program she is not comparing herself personally to [the
       defendant in Hoak] who had never received treatment.” Appellant’s Br. p. 11.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020                    Page 7 of 8
       demonstrate that the trial court abused its discretion in ordering the remainder

       of her sentence to be served at the DOC.


                                                  Conclusion

[14]   Evol has not demonstrated that the trial court abused its discretion by ordering

       the remainder of her sentence to be served at the DOC after Evol violated her

       probation. We affirm.


[15]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1696 | January 24, 2020   Page 8 of 8
