MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Feb 02 2016, 8:53 am
this Memorandum Decision shall not be
regarded as precedent or cited before 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
R. Patrick Magrath                                       Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Galbraith,                                      February 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A04-1507-CR-1045
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff                                       Poynter, Judge
                                                         Trial Court Cause Nos.
                                                         36C01-1304-FD-139
                                                         36C01-1402-FD-82



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016     Page 1 of 4
[1]   Kimberly Galbraith appeals the trial court’s order revoking probation and

      ordering her to execute the remainder of her sentences in two causes. Finding

      no error, we affirm.


                                                     Facts
[2]   On April 8, 2013, the State charged Galbraith with class D felony theft in Cause

      Number 36C01-1304-FD-139 (Cause 139). On March 5, 2014, the State added

      a count of class A misdemeanor criminal conversion. Galbraith pleaded guilty

      to criminal conversion and the State dismissed the theft charge. On July 17,

      2014, the trial court sentenced Galbraith—pursuant to the terms of her plea

      agreement—to twelve months incarceration, fully suspended to supervised

      probation.


[3]   On February 11, 2014, the State charged Galbraith with class D felony theft,

      class D felony possession of methamphetamine, and class A misdemeanor

      possession of paraphernalia in Cause Number 36C01-1402-FD-82 (Cause 82).

      On July 17, 2014, Galbraith pleaded guilty to class A misdemeanor possession

      of paraphernalia in exchange for the dismissal of the other two charges. On

      August 6, 2014, the trial court sentenced Galbraith—pursuant to the terms of

      her plea agreement—to twelve months incarceration, fully suspended to

      supervised probation, to be served consecutively to the sentence in Cause 139.


[4]   As a condition of probation, Galbraith was required to refrain from use of

      illegal drugs. On February 2, 2015, the State filed a petition to revoke

      probation in both causes, alleging that Galbraith had violated probation by

      Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016   Page 2 of 4
      testing positive for methamphetamine. Galbraith admitted to the allegation at

      an April 6, 2015, factfinding hearing. At that hearing, the trial court ordered

      Galbraith to submit to weekly drug screens. At the June 26, 2015, sanctions

      hearing, Galbraith’s probation officer testified that six drug screens were

      administered to Galbraith between April 6 and June 4, 2015, and that Galbraith

      tested positive for methamphetamine on every single screen. At the conclusion

      of the hearing, the trial court revoked Galbraith’s probation in both cases and

      ordered her to serve the previously-suspended portion of each sentence. The

      trial court ordered the sentences to be served consecutively, as originally

      ordered and as provided for in the plea agreement for Cause 82. Galbraith now

      appeals.


                                   Discussion and Decision
[5]   Probation is a matter of grace left to trial court discretion rather than a right to

      which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

      We review a trial court’s probation determinations and sanctions for an abuse

      of discretion. Id. The revocation of probation is in the nature of a civil action

      rather than a criminal one; thus, the alleged violation need be proved only by a

      preponderance of the evidence. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App.

      2015), trans. denied. Violation of a single term or condition of probation is

      sufficient to revoke probation. Id. When the procedures for revoking probation

      have been properly followed—and there is no allegation in this case that they

      were not—we will uphold the trial court’s imposition of the entire previously-



      Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016   Page 3 of 4
      suspended sentence. Wann v. State, 997 N.E.2d 1103, 1106 (Ind. Ct. App.

      2013).


[6]   In this case, Galbraith admitted to violating probation when she tested positive

      for methamphetamine in January 2015. That evidence, alone, is sufficient to

      support the revocation. Then, at the sanctions hearing, evidence was presented

      that she proceeded to test positive for methamphetamine on each of six drug

      screens. Presumably, had she tested clean between the factfinding and

      sanctions hearings, the trial court would have been more amenable to showing

      leniency. Yet she was unable to provide a single clean screen.


[7]   Galbraith argues that there are mitigating circumstances to her case that the

      trial court ignored. But when imposing a sentence in a probation revocation

      proceeding, trial courts are not required to balance aggravating or mitigating

      circumstances. Treece v. State, 10 N.E.3d 52, 59-60 (Ind. Ct. App. 2014), trans.

      denied. Therefore, this argument is unavailing.


[8]   Galbraith admitted to methamphetamine use and tested positive on six

      consecutive screens. It should be noted that supervised probation was a term to

      which she agreed as part of her two plea agreements. When offered leniency by

      the State, Galbraith took advantage and used illegal drugs. We find no error in

      the trial court’s decision to withhold its leniency the second time around.


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


      Bradford, J., and Pyle, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016   Page 4 of 4
