MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Feb 18 2016, 9:39 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
Stacy R. Uliana                                         Gregory F. Zoeller
Bargersville, Indiana                                   Attorney General of Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lewis R. Ross, III,                                     February 18, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A01-1508-CR-1261
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Michael Rader,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause Nos.
                                                        84D05-1405-FD-1428
                                                        84D05-1308-FD-2518



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016   Page 1 of 6
                                Case Summary and Issue
[1]   Lewis Ross’ home detention and probation was revoked, and the trial court

      ordered him to serve the remainder of his sentence in the Indiana Department

      of Correction. On appeal, Ross raises the sole issue of whether the trial court

      abused its discretion in ordering him to serve the remaining portion of his

      sentence in the Department of Correction. Concluding the trial court did not

      abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On January 26, 2011, the State charged Ross under cause number 84D05-1101-

      FD-341 (“FD-341”) with domestic battery, a Class D felony. On August 22,

      2013, the State charged Ross under cause number 84D05-1308-FD-2518 (“FD-

      2518”) with possession of chemical reagents or precursors with the intent to

      manufacture a controlled substance, a Class D felony. Three months later, the

      State charged Ross under cause number 84D05-1405-FD-1428 (“FD-1428”)

      with domestic battery, a Class A misdemeanor; possession of paraphernalia, a

      Class A infraction; strangulation, a Class D felony; and possession of

      methamphetamine, a Class D felony. The State later amended the charging

      information under FD-1428 to enhance the domestic battery charge to a Class

      D felony.


[3]   In September 2014, Ross entered into a plea agreement with the State whereby

      he pleaded guilty to the charges under FD-341, FD-2518, and to possession of


      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016   Page 2 of 6
      methamphetamine under FD-1428. As a part of the agreement, the remaining

      charges under FD-1428 were dismissed. In aggregate, the trial court sentenced

      Ross to a four-year executed sentence to be served on home detention, followed

      by two years on probation. Ross was required to pay all fees associated with his

      home detention placement. In addition, Ross could not use or possess any

      alcoholic beverages or drugs not prescribed by a physician. Finally, Ross was

      required to attend all classes, tests, seminars or any other activity assigned by

      his field coordinator.


[4]   At his initial drug screen on October 2, 2014, Ross tested positive for

      methamphetamine. Over the next several months, Ross tested positive for

      alcohol consumption six times. On June 18, 2015, Ross again tested positive

      for methamphetamine. The following week, Ross failed to report to two

      required classes. Ross was also $1,889 in arrears for his home detention fees.

      As a result, the State filed a Petition to Revoke Direct Placement in the Home

      Detention Program and/or to Revoke Probation.


[5]   On July 30, 2015, at a hearing on the State’s petition, Ross admitted to having a

      substance abuse problem and claimed he consumed alcohol in an attempt to

      “stay off the methamphetamine . . . .” Transcript at 14. In addition, Ross

      claimed he used methamphetamine and skipped two classes because he was

      depressed. In revoking Ross’ probation and home detention placement, the

      trial court acknowledged Ross’ “atrocious” criminal history and “[a] number of

      probation violations . . . .” Id. at 25-26. The trial court then ordered he serve

      the balance of his aggregate term—approximately four years—in the

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      Department of Correction. The trial court also ordered Ross receive treatment

      for his substance abuse while in prison, and stated once Ross completed an

      appropriate treatment program, it would consider modifying the sentence. This

      appeal ensued.



                                Discussion and Decision
                                     I. Standard of Review
[6]   Initially, we note the standard of review on appeal from the revocation of direct

      placement in home detention mirrors that for revocation of probation. Cox v.

      State, 706 N.E.2d 547, 549 (Ind. 1999). “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). The trial court determines

      probation, and may revoke probation if the conditions of probation are violated.

      Id.; see also Ind. Code § 35-38-2-3. Proof of a single violation of the conditions

      of probation is enough for the trial court to revoke probation. Bussberg v. State,

      827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied. A trial court’s sentencing

      decision for probation violations is reviewed for an abuse of discretion. 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.


                               II. Sanctions on Revocation
[7]   Ross contends the trial court abused its discretion in ordering him to serve the

      remaining four years of his sentence in the Department of Correction.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016   Page 4 of 6
      Specifically, Ross argues that considering his criminal history, his addiction to

      drugs, and the fact he was successful on home detention for almost two years,

      the trial court’s decision went against the logic and effect of the facts and

      circumstances. In Indiana,


              If the court finds that the person has violated a condition at any
              time before termination of the period, and the petition to revoke
              is filed within the probationary period, the court may impose one
              (1) or more of the following sanctions:
                      (1) Continue the person on probation, with or without
                      modifying or enlarging the conditions.
                      (2) Extend the person’s probationary period for not more
                      than one (1) year beyond the original probationary period.
                      (3) Order execution of all or part of the sentence that was
                      suspended at the time of initial sentencing.


      Ind. Code § 35-38-2-3(h); see also Ind. Code § 35-38-2.6-5.


[8]   We are not persuaded the trial court abused its discretion in ordering Ross serve

      the remaining portion of his sentence in the Department of Correction for

      several reasons. First, despite Ross being fully aware of the terms of his

      placement and probation and despite the State giving him multiple

      opportunities to clean up his act, he continued to use alcohol and

      methamphetamine; it is evident Ross failed to take advantage of the State’s

      generosity. Second, Ross’ criminal history is lengthy, and he has a history of

      violating probation. Finally, we are not persuaded Ross can be rehabilitated in

      a home detention setting. The record indicates he fought the urge to use

      methamphetamine with alcohol in direct violation of the terms of his home


      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016   Page 5 of 6
       detention. Further, he opted to use methamphetamine when he was feeling

       depressed, which is also in direct violation of the terms of his home detention.

       It seems when there are problems in life, Ross consistently turns to substance

       abuse. As the trial court stated, Ross can get the help he needs in prison by

       completing a treatment program, and upon completion, the trial court will

       consider modifying his sentence. We conclude the evidence presented at the

       evidentiary hearing provided the court with an ample basis for making its

       decision. Accordingly, we conclude the trial court did not abuse its discretion.



                                               Conclusion
[9]    The trial court did not abuse its discretion in ordering Ross serve the remainder

       of his sentence in the Department of Correction. The judgment of the trial

       court is affirmed.


[10]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016   Page 6 of 6
