MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Mar 15 2019, 10:28 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissman                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Taylor C. Byrley
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James D. Leach,                                          March 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2190
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Hensley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         39D01-1506-F5-515
                                                         39D01-1609-F6-826
                                                         39D01-1612-CM-1163



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019                Page 1 of 9
                                                  Case Summary

[1]   James Leach appeals the sentence imposed after the trial court revoked his

      probation. We affirm.


                                                          Issue

[2]   Leach raises one issue, which we restate as whether the trial court properly

      ordered Leach to serve the balance of his sentence at the Department of

      Correction (“DOC”).


                                                          Facts

[3]   On January 24, 2017, Leach pleaded guilty to several offenses and was

      sentenced pursuant to a plea agreement. First, Leach pleaded guilty to criminal

      confinement, a Level 6 felony, and domestic battery, a Class A misdemeanor. 1

      Leach was sentenced to two years at the DOC, which was suspended to

      supervised probation. 2 Second, Leach pleaded guilty to failure to return to

      lawful detention, a Level 6 felony. 3 Leach was sentenced to one year and six

      months at the DOC with six months executed and the balance suspended to

      supervised probation. Finally, Leach pleaded guilty to criminal mischief, a




      1
          Cause No. 39D01-1506-F5-515.
      2
        Based on the plea agreement and the trial court’s remarks at the revocation hearing, it appears that Leach
      was sentenced to four days of jail commitment, in addition to his two-year sentence, for the domestic battery
      conviction. See Appellant’s App. Vol. II p. 33; see also Sent. Tr. Vol. II p. 11. Because it appears the four-day
      jail commitment was served prior to entry of the plea agreement, we will continue to reference Leach’s
      sentence for Cause No. 39D01-1506-F5-515 as two years.
      3
          Cause No. 39D01-1609-F6-826.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019                        Page 2 of 9
      Class A misdemeanor. 4 Leach was sentenced to 180 days in the Jefferson

      County Jail, which was suspended to supervised probation. The sentences were

      to run consecutively.


[4]   On February 8, 2017, and February 14, 2017, Leach admitted to using

      methamphetamine after testing positive for methamphetamine during a

      urinalysis drug screen in violation of the terms of his probation. As a result, on

      March 13, 2017, Leach entered an administrative agreement whereby Leach

      agreed to be “placed on a lockdown schedule for [two] weeks; [o]btain a

      substance abuse evaluation within [two] weeks and follow treatment

      recommendations; and be placed on the drug screen call line for a minimum of

      [sixty] days.” Appellant’s App. Vol. II p. 38. One day after the administrative

      agreement was signed, Leach again tested positive for methamphetamine.


[5]   On April 12, 2017, the State filed a petition to revoke Leach’s probation. In

      Paragraph 8 of its petition, the State alleged:


                The defendant violated this condition of probation on or about
                the following dates:


                     a. February 8, 2017[,] and February 14, 2017[,] by using
                methamphetamine.


                            i. Please note: On March 13, 2017, the defendant
                was given an administrative agreement wherein the defendant




      4
          Cause No. 39D01-1612-CM-1163.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 3 of 9
              agreed he violated the conditions of community corrections by
              using methamphetamine on or about 2/8/17 and 2/14/17. As a
              result, the defendant agreed to be placed on a lockdown schedule
              for 2 weeks, obtain a substance abuse evaluation within 2 weeks,
              and be placed on the drug screen call line. The defendant failed
              to comply with this agreement by failing to call the drug screen
              call line on 3/17/17, 3/20/17, 3/21/17, 3/22/17, 3/23/17, and
              every day from 3/25/17 through 4/3/17.


                      b. March 14, 2017 by using methamphetamine.


      Appellant’s App. Vol. II p. 46. The probation condition Leach was accused of

      violating stated:


              [Leach] cannot use or possess alcoholic beverages, illegal drugs,
              synthetic drugs, or controlled substances (unless prescribed to
              [Leach] by a physician).


      Id. The State’s petition also alleged that Leach was arrested on April 5, 2017,

      and charged with possession of a device used to interfere with a drug or alcohol

      screen, a Class B misdemeanor, in violation of the terms of his probation.


[6]   After Leach’s arrest in April, Leach enrolled in the Salvation Army Adult

      Rehab Center (“ARC”) program in Fort Wayne from May 10, 2017, until June

      18, 2017. Leach claims he left ARC after his wife’s vehicle broke down, and

      she needed assistance going to and from work; however, the ARC program

      notified the court that Leach “went missing” on June 18th. Sent. Tr. Vol. II p.

      10. The State contends Leach left ARC with another individual who appeared

      to be “kicked out of the program.” Appellee’s Br. p. 7, see also Sent. Tr. p. 30.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 4 of 9
      After his departure from ARC, Leach stated that he relapsed due to medication

      he was prescribed after surgery from a work injury.


[7]   Leach had a revocation hearing on August 22, 2018. At the hearing, Leach

      admitted to only the allegations in Paragraph 8 of the State’s petition. The trial

      court found, pursuant to Leach’s admissions, that Leach had violated his

      probation. Accordingly, the trial court stated:


              Okay. Well, what I’ll do is I’ll revoke all time served plus two
              years and one month, and we will apply the time served first to
              the misdemeanor sentence, . . . and then the leftover will be
              applied to the felonies, and that – . . . should be four months
              there that we – we have to spare so that the – the revocation will
              be for two years and one month, and uh – it’s the Court’s belief
              that would be a sufficient amount of time for me to send you to
              the Department of Correction[] where I will recommend that you
              receive substance treatment, . . . And, hey, I can’t guarantee,
              Mr. Leach, you’ll get treatment, but uh – I think that you know
              that will give him every chance that – possible to get the
              treatment, but I can’t guarantee it. You know, we’ve given you
              several chances here, and uh – you know, it sounds like, you
              know, maybe you’ve found your way now, but you know uh –
              you – you have failed to report to incarceration once. I released
              you on bond to return immediately upon your leaving ARC and
              you did not return, and in good conscience I can’t uh – you know
              keep doing the same thing. . . . I’ll terminate the remainder of
              your probation as unsuccessful and enter a judgment for costs.


      Sent. Tr. pp. 40-41.


[8]   The trial court revoked Leach’s suspended sentence of two years on the

      criminal confinement conviction, one year on the failure to return to lawful


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 5 of 9
       detention conviction, and 180 days on the criminal mischief conviction, minus

       Leach’s good time credit. 5


[9]    The trial court recommended that, while Leach was in the DOC, Leach should

       participate in the “purposeful incarceration” program and encouraged Leach to

       participate in the “recovery while incarcerated” program. Appellant’s App.

       Vol. II p. 60. Leach now appeals.


                                                       Analysis

[10]   Leach argues that the trial court abused its discretion by ordering him to serve

       the balance of his suspended sentence at the DOC. “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 is a

       criminal sanction wherein a convicted defendant specifically agrees to accept

       conditions upon his behavior in lieu of imprisonment.” Bratcher v. State, 999

       N.E.2d 864, 873 (Ind. Ct. App. 2013) (citing Carswell v. State, 721 N.E.2d 1255,

       1258 (Ind. Ct. App. 1999)), trans. denied. Where, like here, the trial court finds

       that a defendant has violated a condition of his probation, it may: (1) continue

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

       the probationary period for up to one year; or (3) revoke the probation and

       order the execution of all or part of the sentence suspended at the initial




       5
         The trial court found that Leach “shall receive credit for 201 days accrued time, 402 days good time; said
       credit time is to be applied first to the sentence in cause number 39D01-1612-CM-1163 and the remaining
       time to the sentence in cause number 39D01-1506-F5-515.” Appellant’s App. Vol. II p. 60.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019                     Page 6 of 9
       hearing. Ind. Code § 35-38-2-3(h). 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. Id.


[11]   Leach is not “asking this court to ignore his probation violation.” Appellant’s

       Br. p. 12. Instead, Leach “argues that sending him back to prison with the hope

       that he might be eligible for drug treatment was an abuse of discretion.” Id. at

       6. Leach argues “the trial court failed to consider the proper sanction merited

       by his violation. . . . [and that the] DOC placement did not ensure treatment.”

       Id.


[12]   In support of his argument, Leach relies on Johnson v. State, 62 N.E.3d 1224

       (Ind. Ct. App. 2016), where we considered whether the trial court abused its

       discretion in revoking Johnson’s community corrections placement and

       ordering Johnson to serve the remainder of his executed sentence in prison. Id.

       at 1225. Johnson “was adequately oriented but appear[ed] to have marked

       learning, cognitive, and memory deficits,” and “[was] likely to meet criteria for

       Mild Mental Retardation if he were formally tested.” Id. (internal citations

       omitted). Johnson was sentenced to eleven years with seven years executed,

       and four years suspended to probation. Id. at 1227. The terms of Johnson’s

       home detention were that he could remain in “the interior living area of the

       temporary or permanent residence of [Johnson’s residence].” Id. (internal

       citations omitted).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 7 of 9
[13]   At some point, Johnson fell behind on his fees and travelled to an unauthorized

       location when he was given permission on one occasion to leave the home. Id.

       Johnson was also seen by a field officer sitting outside his apartment on the

       porch, instead of inside the apartment. Id. In response to the State’s petition

       for revocation, the trial court modified Johnson’s sentence, revoked Johnson’s

       placement in community corrections, and ordered Johnson to serve the

       remainder of his executed sentence, which was approximately seven years, at

       the DOC. A panel of our court held that the trial court abused its discretion

       based on the “level of Johnson’s functioning and his resources, his previous

       successful placement on work release, the nature of the violation, and the

       severity of the court’s sentence.” Id. at 1231.


[14]   While Leach acknowledges “the facts of this case differ from Johnson,” Leach

       still contends that, similarly to Johnson, “three years of jail time is unduly harsh

       considering Leach will be parted from his wife and six-year-old child for a long

       time for doing nothing more than being a drug addict.” Appellant’s Br. pp. 9-

       10. We disagree with Leach that revocation of his suspended sentence was

       unduly harsh.


[15]   The trial court noted that Leach had repeated probation violations. Notably,

       the State did not petition for revocation of Leach’s probation until after Leach

       violated his administrative agreement repeatedly. Our Supreme Court has held:


               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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 8 of 9
               afforded to trial courts and sentences were scrutinized too
               severely on appeal, trial judges might be less inclined to order
               probation to future defendants.


       Prewitt, 878 N.E.2d at 188. The trial court had “considerable leeway” in

       deciding the consequences of Leach’s probation violations. Id. Given Leach’s

       repeated probation violations, we do not find the imposition of the suspended

       sentence to be an abuse of discretion. See, e.g., McKnight v. State, 787 N.E.2d

       888, 893 (Ind. Ct. App. 2003) (holding that the trial court properly ordered the

       defendant to serve seven years of his previously-suspended sentence after

       finding four probation violations).


                                                  Conclusion

[16]   The trial court did not abuse its discretion by ordering Leach to serve his

       suspended sentence. We affirm.


[17]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2190 | March 15, 2019   Page 9 of 9
