      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be                                 Mar 16 2018, 9:45 am
      regarded as precedent or cited before any
                                                                                 CLERK
      court except for the purpose of establishing                           Indiana Supreme Court
                                                                                Court of Appeals
      the defense of res judicata, collateral                                     and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                     Curtis T. Hill, Jr.
      Anderson, Indiana                                       Attorney General of Indiana
                                                              George P. Sherman
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Ashlee K. Pierce,                                       March 16, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              48A05-1708-CR-1991
              v.                                              Appeal from the Madison Circuit
                                                              Court
      State of Indiana,                                       The Honorable Thomas Newman,
      Appellee-Plaintiff.                                     Jr., Judge
                                                              Trial Court Cause No.
                                                              48D03-0912-FD-433



      Pyle, Judge.


[1]   Ashlee K. Pierce (“Pierce”) appeals the revocation of her probation, arguing

      that: (1) the trial court violated her right to due process by failing to specify the


      Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018           Page 1 of 12
      reasons for revoking her probation; and (2) the trial court abused its discretion

      by ordering her to serve her previously suspended sentence. Finding no due

      process violation nor abuse of discretion, we affirm the trial court’s judgment.


[2]   We affirm.


                                                        Issues
               1. Whether the trial court violated Pierce’s right to due process.

               2. Whether the trial court abused its discretion by ordering Pierce
               to serve her previously suspended sentence.

                                                         Facts
[3]   In December 2009, the State charged Pierce with Class D felony theft. In

      March 2010, she pled guilty as charged. The trial court imposed a two (2) year

      sentence, all of which was suspended to probation, and ordered it to be served

      consecutively to her sentence in cause number 48D03-0911-FA-401.


[4]   In August 2013, the State filed a notice of probation violation. At the

      revocation hearing, Pierce admitted that she had committed a new criminal

      offense and had failed to obtain her GED.1 The trial court found that she had




      1
        Pierce did not include a copy of the notice of probation violation or the trial court’s order following the
      probation revocation hearing. However, the notice of probation violation is contained in the chronological
      case summary (“CCS”) for this case in Indiana’s Odyssey Case Management System (“Odyssey”). That
      revocation notice reveals that the State alleged that she had violated probation by committing the offenses of
      Class B felony dealing in methamphetamine and Class D felony neglect of a dependent. See Horton v. State,
      51 N.E.3d 1154, 1160 (Ind. 2016) (explaining that Indiana Evidence Rule 201(b)(5), as amended effective
      January 1, 2010, “now permits courts to take judicial notice of ‘records of a court of this state’”).




      Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018              Page 2 of 12
      violated her probation but gave her a second chance and placed her back on

      probation. The trial court also ordered Pierce to complete an evaluation upon

      her release from the Indiana Department of Correction.


[5]   On July 17, 2017, Madison County Probation Officer Janelle Johnson

      (“Probation Officer Johnson”) obtained a urine sample from Pierce for a drug

      screen. Pierce told the probation officer that “she would be clean” other than

      her prescriptions for methadone for her opiate addiction and Vyvanse for her

      ADHD. (Tr. 21). A preliminary test came back positive for other drugs, so

      Probation Officer Johnson sent the urine sample for more complete testing.2

      The subsequent lab results revealed that Pierce tested positive for methadone,

      amphetamine, methamphetamine, morphine, cocaine, and fentanyl.


[6]   On July 25, 2017, the State filed a second notice of probation violation, alleging

      that Pierce had violated her probation by: (a) failing to pay probation fees; (b)

      failing to pay administrative fees; (c) “[f]ail[ing] to abstain from the use of . . .

      illicit drugs during the period of probation” and submitting a urine sample that

      tested positive for methadone, methamphetamine, morphine, cocaine, and

      fentanyl;3 and (d) failing to provide truthful information to the probation

      department. (App. Vol. 2 at 15).




      2
          The preliminary test revealed the presence of benzodiazepine, cocaine, and THC.
      3
        The State initially alleged that the drug test results indicated a positive test for THC, but it later withdrew
      that allegation during the probation revocation hearing.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018                   Page 3 of 12
[7]   The trial court held a probation revocation hearing on July 31, 2017. At the

      beginning of the hearing, Pierce’s counsel told the trial court that there were

      “going to be partial admissions.” (Tr. 9). Thereafter, Pierce’s counsel

      questioned Pierce regarding allegations (a) through (c) in the probation

      revocation petition. Pierce admitted that she had failed to pay her probation

      fees and administrative fees as alleged in subsections (a) and (b) of the

      revocation petition. She stated that she was behind on her probation fees

      because she had been incarcerated, but she confirmed that she was not

      disputing that she had failed to pay the fees. In regard to the allegation of drug

      use in subsection (c) of the revocation petition, she admitted that she had used

      methadone because she had a prescription for it for her opiate addiction. She

      also admitted that she should have tested positive for amphetamines because

      she took Vyvanse for her ADHD. As for her positive test results for

      methamphetamine, morphine, cocaine, and fentanyl, she denied using those

      drugs but opined that some of those substances could have been contained in a

      tooth cream that she had gotten from her uncle, who she “kn[e]w . . . [wa]s a

      user.” (Tr. 13). Alternatively, she testified that the positive test results for those

      drugs could have been the result of her “being in contact at [her uncle’s]

      house.” (Tr. 14).


[8]   Thereafter, the State presented testimony from Probation Officer Johnson, who

      testified about the lab test results. Probation Officer Johnson testified that, in

      addition to the positive results for methadone and amphetamines for which

      Pierce had a prescription, Pierce also tested positive for methamphetamine,


      Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 4 of 12
       cocaine, morphine, and fentanyl. Pierce did not object to Probation Officer

       Johnson’s testimony regarding the lab test results.4 Probation Officer Johnson

       testified that she had not expected Pierce to have any positive drug results, other

       than her two prescriptions, because Pierce had informed her that she would be

       “clean.” (Tr. 21).


[9]    Pierce’s counsel argued that the trial court should not find that Pierce had

       violated her probation based on allegation (c) of the revocation petition because

       she “could have been drugged by [her] uncle” with the tooth cream and that it

       would have been “without her knowledge.” (Tr. 28). Her counsel also argued

       that trial court should not find that Pierce had violated her probation based on

       allegation (d) because she had testified that she had not lied to the probation

       officer.


[10]   At the end of the hearing, the trial court stated that Pierce had violated her

       probation by “violat[ing] C and D.” (Tr. 28). That same day, the trial court

       issued a written order in which it found, in relevant part, as follows:


               The defendant [Pierce] admits to violation in that the defendant
               failed to pay Probation Fees and failed to pay Administrative
               Fees. Cause submitted and evidence heard. The Court finds by
               [a] preponderance of the evidence that the defendant violated the
               conditions of Probation, to wit: failed to abstain from the use of .




       4
         The State did not introduce the lab test results into evidence as a separate exhibit. When Pierce’s counsel
       cross-examined Probation Officer Johnson, counsel stated that the lab results would have been “very
       inadmissible” but made no argument “because [Probation Officer Johnson] ha[d] already testified to it.” (Tr.
       24).

       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018             Page 5 of 12
               . . illicit drugs and failed to provide truthful information to the
               Probation Department.

       (App. Vol. 2 at 17). The trial court revoked Pierce’s probation and ordered her

       to serve her previously suspended two (2) year sentence in the Indiana

       Department of Correction. The trial court recommended that Pierce be placed

       in purposeful incarceration, and it informed her that it would be willing to

       consider modifying her sentence after she had successfully completed the

       purposeful incarceration program. Pierce now appeals.


                                                   Decision
[11]   Pierce argues that the trial court: (1) violated her right to due process; and (2)

       abused its discretion by ordering her to serve the remainder of her previously

       suspended sentence. We will address each argument in turn.


       1. Due Process


[12]   Pierce contends that the trial court violated her right to due process by failing to

       specify the reasons for revoking her probation.


[13]   “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). “A probation hearing is civil in nature[,]” Cox v. State, 706 N.E.2d 547,

       551 (Ind. 1999), reh’g denied, and “probationers do not receive the same

       constitutional rights that defendants receive at trial.” Reyes v. State, 868 N.E.2d

       438, 440 (Ind. 2007), reh’g denied. “Although probationers are not entitled to

       the full array of constitutional rights afforded defendants at trial, ‘the Due

       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 6 of 12
       Process Clause of the Fourteenth Amendment [does] impose [ ] procedural and

       substantive limits on the revocation of the conditional liberty created by

       probation.’” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (quoting Debro v.

       State, 821 N.E.2d 367, 374 (Ind. 2005)).


[14]   The minimum requirements of due process provided to a probationer at a

       revocation hearing include: (a) written notice of the claimed violations of

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

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

       cross-examine adverse witnesses; (e) a neutral and detached hearing body; and

       (f) a written statement by the factfinder as to the evidence relied on and reasons

       for revoking probation. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App.

       1997) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). The requirement for

       a written statement “is a procedural device aimed at promoting accurate fact

       finding and ensuring the accurate review of revocation decisions.” Hubbard v.

       State, 683 N.E.2d 618, 620-21 (Ind. Ct. App. 1997) (footnote omitted). See also

       Medicus v. State, 664 N.E.2d 1163, 1164 (Ind. 1996) (“Due process requires that

       the reasons for revoking probation be clearly and plainly stated by the

       sentencing judge not merely to give appellant notice of the revocation, but also

       to facilitate meaningful appellate review.”). “[A] trial judge’s oral statement, if

       it contains the facts relied upon and reasons for revocation, and is reduced to

       writing in the transcript of the hearing, is sufficient to satisfy this requirement.”

       Wilson v. State, 708 N.E.2d 32, 33 (Ind. Ct. App. 1999).




       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 7 of 12
[15]   Pierce acknowledges that the trial court found that she had violated her

       probation as alleged in subsections (c) and (d) of the probation revocation

       petition. Subsection (c) of the petition alleged that Pierce had “fail[ed] to

       abstain from the use of . . . illicit drugs during the period of probation” when

       she submitted a urine sample that tested positive for methadone,

       methamphetamine, morphine, and cocaine, fentanyl, and subsection (d) alleged

       that she had “fail[ed] to provide truthful information to the Probation

       Department.” (App. Vol. 2 at 15). At the end of the revocation hearing, the

       trial court stated that it had determined that Pierce had violated her probation

       by “violat[ing] C and D.” (Tr. 28). Additionally, the trial court’s written order

       also set forth the bases upon which it was revoking Pierce’s probation:


               The defendant [Pierce] admits to violation in that the defendant
               failed to pay Probation Fees and failed to pay Administrative
               Fees. Cause submitted and evidence heard. The Court finds by
               [a] preponderance of the evidence that the defendant violated the
               conditions of Probation, to wit: failed to abstain from the use of .
               . . illicit drugs and failed to provide truthful information to the
               Probation Department.

       (App. Vol. 2 at 17).


[16]   Pierce, however, contends that she was denied due process because the trial

       court did not specify “what drug and the nature of the untruthfulness[.]”

       (Pierce’s Br. 12). We disagree with her contention that her due process rights

       were violated.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 8 of 12
[17]   The trial court’s written order and oral findings at the hearing clearly indicate

       that the reasons for revoking Pierce’s probation were the four allegations

       contained in the revocation petition, which included: (a) failure to pay

       probation fees; (b) failure to pay administrative fees; (c) failure to abstain from

       drugs; and (d) failure to provide truthful information to the probation

       department. The trial court’s order indicates that it relied upon Pierce’s

       admission regarding her failure to pay to find that she had violated allegations

       (a) and (b) and that it relied upon the State’s evidence, which consisted of

       Probation Officer Johnson’s testimony, to find that Pierce had violated

       allegations (c) and (d). Thus, the trial court’s written order and oral hearing

       statement satisfy the Morrissey written statement requirement and serve the

       requirement’s purpose of giving notice of the revocation and facilitating

       meaningful review. Accordingly, the trial court did not violate Pierce’s due

       process rights. See, e.g., Hubbard, 683 N.E.2d at 621 (the trial court’s written

       revocation order, which provided the reasons for revocation, and the hearing

       transcript, which provided the evidence underlying the revocation, “provide[d]

       an adequate basis for appellate review” and were “adequate to satisfy the

       separate writing requirement”); Wilson, 708 N.E.2d at 33-34 (holding that the

       trial court’s oral hearing statement—that it “f[ound] that [the] State has met its

       burden of proof and f[ound] the defendant ha[d] violated the terms and

       conditions of his probation as alleged in Item 3A, 3B, 3C, D, E, and F and




       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 9 of 12
       G”—met the written statement requirement and did not violate the

       probationer’s due process rights).5


       2. Order to Serve Suspended Sentence


[18]   Pierce also argues that the trial court abused its discretion by ordering her to

       serve her previously suspended sentence.


[19]   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.” IND. CODE § 35-38-2-3(h)(3).

       “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.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial

       courts and sentences were scrutinized too severely on appeal, trial judges might




       5
         Pierce does not set forth a separate argument regarding the sufficiency of the evidence to support her
       revocation; however, she sets forth some peripheral arguments, which we now address. Pierce acknowledges
       that “the Trial Court rightly found that Pierce failed to pay her probation and administrative fees as ordered.”
       (Pierce’s Br. 14). Nevertheless, she contends that her failure to pay fees cannot serve as the sole basis for her
       revocation or for the trial court’s order that she serve her suspended sentence in the Indiana Department of
       Correction. However, as is clear from the record, her failure to pay fees was not the sole basis. Her
       revocation was also based on her failure to abstain from drugs and her failure to be truthful with the
       probation department.
       Additionally, Pierce does not challenge the admissibility of the testimony regarding the lab test results.
       Instead, Pierce contends that her revocation should not have been premised upon a positive drug result for
       THC, methadone, or amphetamines. The record reveals that the State withdrew that the allegation that
       Pierce had violated probation by testing positive for THC and that Probation Officer Johnson acknowledged
       that Pierce had prescriptions that would account for her methadone and amphetamine drug results. Thus,
       her revocation would not have been based on these drugs. As for her positive test results for fentanyl,
       methamphetamine, morphine, and cocaine, she suggests that only the cocaine result should be excused
       because of the tooth cream given to her by her uncle. This contention is nothing more than a request to
       reweigh the evidence and the trial court’s determination of witness credibility, which we will not do. See
       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018               Page 10 of 12
       be less inclined to order probation to future defendants.” Id. As a result, we

       review a trial court’s sentencing decision from a probation revocation for an

       abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956). An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances. Id.


[20]   Pierce contends that “the Trial Court abused its discretion [by] fully revoking

       her sentence and ordering it served at the Indiana Department of Correction

       considering the technical nature of her violations which included only a positive

       drug screen, failure to pay fees[,] and failure to be truthful to the Probation

       Department.” (Pierce’s Br. 16-17) (emphasis added). Again, we disagree with

       Pierce’s argument.


[21]   The record reveals that the trial court had ample basis for its decision to order

       Pierce to serve her previously suspended sentence in the Indiana Department of

       Correction. Most significantly—and completely disregarded by Pierce—this

       was her second violation of probation. Pierce’s first probation violation occurred

       when she committed a new criminal offense. As noted above, the case records

       for this case in Odyssey reveal that the new offense was related, in part, to

       dealing methamphetamine. Upon her admission that she had violated

       probation by committing the new offense, the trial court granted leniency to

       Pierce and placed her back on probation.


[22]   Pierce’s second probation violation at issue in this appeal was based, in part, on

       her use of illegal drugs. Indeed, Pierce acknowledged during the revocation


       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 11 of 12
       hearing that she has drug problems as she is taking methadone for an opiate

       addiction. Yet, she violated her probation by using illegal drugs, including

       fentanyl, methamphetamine, morphine, and cocaine. Additionally, the record

       before us reveals that she also has a prior criminal history. When Pierce was

       originally sentenced in this case, she had a prior conviction in cause number

       48D03-0911-FA-401, and her sentence for this case was ordered to be served

       consecutively to that cause.


[23]   Based on the record before us, we conclude that the trial court did not abuse its

       discretion by ordering Pierce to serve her previously suspended sentence. For

       the foregoing reasons, we affirm the trial court’s revocation of Pierce’s

       probation.


[24]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 12 of 12
