      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                              Jul 27 2015, 6:38 am
      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
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                                Karl M. Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kenneth Powers,                                          July 27, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               69A04-1502-CR-72
              v.                                               Appeal from the
                                                               Ripley Superior Court
      State of Indiana,                                        The Honorable Jeffrey L. Sharp,
                                                               Judge
      Appellee-Plaintiff.
                                                               Cause No. 69D01-1204-FD-44




      Kirsch, Judge.

[1]   Following the revocation of his probation, Kenneth Powers appeals and raises

      the following restated issue: whether the trial court abused its discretion when,

      after Powers admitted to violating his probation, the court revoked Powers’s

      probation and imposed a portion of Powers’s previously-suspended sentence.


      Court of Appeals of Indiana | Memorandum Decision 69A04-1502-CR-72 |July 27, 2015                Page 1 of 5
[2]   We affirm.


                                 Facts and Procedural History
[3]   In April 2012, the State charged Powers with Class D felony dealing in a

      substance represented to be a controlled substance and Class D felony

      possession or use of a legend drug or precursor. Several months later, Powers

      pleaded guilty to both counts, as charged, and was sentenced to three years of

      imprisonment, with credit for 202 days, and two years suspended to probation.

      In December 2014, the State filed a petition of probation violation.


[4]   At the January 21, 2015 hearing, Powers admitted that he had been drinking

      alcohol, failed a drug screen that showed he had consumed marijuana, and

      failed to attend approximately eighteen court-ordered Alcoholics/Narcotics

      Anonymous meetings. He also admitted that he was in arrears on payment of

      probation-related fees and that, on January 15, 2015, he had refused to submit

      to a drug screen and became verbally combative with his probation officer. The

      State presented argument regarding sentencing that, on more than one

      occasion, when Powers was to undergo a random drug screen, Powers told the

      officer that he wanted his sentence to be revoked as he did not want to be on

      probation. Tr. at 17. The State also reviewed with the trial court Powers’s

      juvenile and adult convictions, consisting of misdemeanors up to Class C

      felonies. The trial court revoked 670 of the 730 suspended days of incarceration

      and ordered Powers to serve that term in the Department of Correction. He

      now appeals.


      Court of Appeals of Indiana | Memorandum Decision 69A04-1502-CR-72 |July 27, 2015   Page 2 of 5
                                     Discussion and Decision
[5]   When reviewing an appeal from the revocation of probation, we consider only

      the evidence most favorable to the judgment, and we will not reweigh the

      evidence or judge the credibility of the witnesses. Cox v. State, 850 N.E.2d 485,

      488 (Ind. Ct. App. 2006). Probation is a favor granted by the State, not a right

      to which a criminal defendant is entitled. Id.


[6]   Probation revocation generally is a two-step process. Woods v. State, 892

      N.E.2d 637, 640 (Ind. 2008). Initially, the court must make a factual

      determination that a violation of a condition of probation actually has occurred

      through an evidentiary hearing that provides certain due process safeguards; if a

      violation is proven, then the trial court must determines if the violation

      warrants revocation of the probation. Id. When a probationer admits to the

      violations, the evidentiary hearing and procedural safeguards are unnecessary,

      and the trial court proceeds to the second step of the inquiry and determines

      whether the violation warrants revocation of the probation. Id. However, even

      if a probationer admits the allegations against him, he or she must be given an

      opportunity to offer mitigating evidence suggesting that the violation does not

      warrant revocation. Id.


[7]   Here, Powers challenges the sentence imposed by the trial court after he

      admitted to violating his probation. He claims that the trial court’s imposition

      of 670 days was too harsh, suggesting that only one year of the suspended

      sentence should be served. We review a trial court’s sentencing decision in


      Court of Appeals of Indiana | Memorandum Decision 69A04-1502-CR-72 |July 27, 2015   Page 3 of 5
      probation revocation proceedings for an abuse of discretion. Cox, 850 N.E.2d at

      489. While a defendant cannot collaterally attack the propriety of an original

      sentence in the context of a probation revocation proceeding, he or she is

      entitled to challenge the sentence that a trial court imposes after revoking

      probation. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011).


[8]   Powers asserts that the imposed 670-day sentence was too long and an abuse of

      discretion because at the hearing he admitted, “I have a drug problem,” and

      thereafter he sent a letter to the trial court expressing his desire to enroll in an

      outpatient drug treatment program, thereby illustrating his desire to change. Tr.

      at 19. We are unpersuaded that any abuse of discretion occurred. Upon

      finding that a probationer has violated a condition of probation, a court may,

      among other things, order execution of all or part of the initial sentence that

      was suspended. Ind. Code § 35-38-2-3(h). Here, Powers offered nothing to the

      trial court beyond the sole statement, “I have a drug problem.” Tr. at 19. In

      making its recommendation regarding sentencing, the State argued, and Powers

      admitted, that on more than one occasion, Powers was “verbally abusive” with

      his probation officer, refused drug screens, and indicated he did not want to be

      on probation. Id. at 16-17. The trial court had the authority to order Powers to

      serve the previously-suspended two years, 730 days, but it only required Powers

      to serve a portion of that sentence.1 Powers has failed to establish that the trial




      1
        We note that the trial court’s written Order on Probation Violation placed Powers in the Purposeful
      Incarceration Program (“Program”) at the Department of Correction. Appellant’s App. at 68. At the
      revocation hearing, Powers stated, “I already did that.” Tr. at 20. However, in a letter that Powers sent to

      Court of Appeals of Indiana | Memorandum Decision 69A04-1502-CR-72 |July 27, 2015                  Page 4 of 5
      court abused its discretion when it revoked his probation and ordered him to

      serve 670 days of incarceration.


[9]   Affirmed.


      Najam, J., and Barnes, J., concur.




      the trial court following the hearing, Powers expressed a desire to participate in and complete the Program.
      Appellant’s App. at 70. Thus, Powers’s participation in the Program is not clear from the record before us.

      Court of Appeals of Indiana | Memorandum Decision 69A04-1502-CR-72 |July 27, 2015                  Page 5 of 5
