MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 13 2017, 8:53 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                  Curtis T. Hill
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dominique L. Gooden,                                    December 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A05-1708-CR-1999
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1209-FD-1385




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017         Page 1 of 6
                                          Case Summary
[1]   Appellant-Defendant Dominique L. Gooden was sentenced to two years of

      incarceration suspended to probation after she pled guilty to two counts of class

      D felony receiving stolen property. On November 13, 2015, a verified petition

      for revocation was filed by the State. On December 28, 2015, Gooden admitted

      to the violation of her probation and she was placed in the drug court diversion

      program (“DCDP”).


[2]   On July 10, 2017, a verified petition to terminate Gooden’s participation in the

      DCDP was filed by the State. Gooden admitted to two of the three alleged

      violations, and she was revoked from DCDP. On July 11, 2017, an amended

      petition for revocation of probation was filed based upon the revocation from

      DCDP, which the trial court granted on July 13, 2017. On August 15, 2017,

      the trial court ordered Gooden to serve her aggregate two-year sentence.

      Gooden contends that the trial court abused its discretion in ordering her to

      execute her previously suspended sentence. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   On September 28, 2012, the State charged Gooden with three counts of Class D

      felony receiving stolen property. On January 17, 2013, Gooden entered into a

      plea agreement pursuant to which she pled guilty to two of the charges against

      her while the third charge was dismissed. On February 15, 2013, Gooden was

      sentenced to an aggregate two-year sentence suspended to probation.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017   Page 2 of 6
[4]   On February 11, 2015, Gooden’s probation was extended for one year due to

      her failure to pay her fees and restitution. On November 13, 2015, the State

      filed a verified petition for revocation of probation alleging that Gooden had

      committed a new offense of theft in October of 2015, had not maintained full-

      time employment, and had not paid fees or restitution in a timely manner. On

      December 28, 2015, Gooden admitted the violations of the terms of her

      probation, her admissions were taken under advisement, and she was placed in

      the DCDP.


[5]   A verified petition to terminate Gooden’s participation in the DCDP was filed

      on July 10, 2017. In the petition, the State alleged that Gooden had purchased

      and ingested heroin and had tested positive for morphine or codeine. The State

      also alleged that Gooden had failed to comply with the medication-assisted

      treatment at Bowen Center. Gooden admitted to purchasing and ingesting

      heroin and to testing positive for morphine and codeine, but denied being non-

      compliant with medication-assisted treatment. The trial court revoked Gooden

      from DCDP stating “we’re up into the 30s of second chances based on your

      participation and where we’ve been.” Tr. Vol. II p. 10. The court further noted

      Gooden’s “continued use,”1 “lack of progress in treatment,” and that she had

      overdosed repeatedly. Tr. Vol. II p. 10. On July 11, 2017, an amended verified




      1
          Gooden had ten positive drug screens while participating in the DCDP.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017   Page 3 of 6
      petition for revocation of probation was filed based upon the revocation from

      DCDP, which the trial court granted on July 13, 2017.


[6]   On August 15, 2017, the trial court ordered Gooden to serve her suspended

      two-year sentence. The trial court noted Gooden’s contact with the juvenile

      court system, juvenile drug treatment, administrative probation, three felony

      convictions, and one misdemeanor conviction. Tr. Vol. II p. 25. The trial court

      further noted the fact that Gooden had been given the benefit of probation,

      multiple attempts at treatment, and the DCDP, which Gooden “failed

      miserably[,]” in imposing Gooden’s two-year sentence. Tr. Vol. II p. 25.



                                Discussion and Decision
[7]   Probation is a “matter of grace” and a “conditional liberty that is a favor, not a

      right.” Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004) (quoting Cox v.

      State, 706 N.E.2d 547, 549 (Ind. 1999)). We review a trial court’s probation

      revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956

      (Ind. Ct. App. 2005), trans. denied. If the trial court finds that the person

      violated a condition of probation, it may order the execution of any part of the

      sentence that was suspended at the time of initial sentencing. Stephens v. State,

      818 N.E.2d 936, 942 (Ind. 2004). Proof of a single violation of the conditions

      of probation is sufficient to support the decision to revoke probation. Bussberg v.

      State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).




      Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017   Page 4 of 6
[8]    An abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 187 (Ind.

       2007). As long as the proper procedures have been followed in conducting a

       probation revocation hearing, “the trial court may order execution of a

       suspended sentence upon a finding of a violation by a preponderance of the

       evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999). The

       “[c]onsideration and imposition of any alternatives to incarceration is a ‘matter

       of grace’ left to the discretion of the trial court.” Monday v. State, 671 N.E.2d

       467, 469 (Ind. Ct. App. 1996).


[9]    Gooden argues that trial court abused its discretion because her penalty does

       not match her offense. Gooden further argues, among other things, that the

       trial court should have considered her efforts to treat her addiction. Under the

       circumstances of this case, Gooden has failed to establish an abuse of

       discretion. There are no allegations that the proper procedures were not

       followed in this case, and Gooden admitted that she violated the terms of her

       probation by purchasing and ingesting heroin and testing positive for morphine

       and codeine. It is worth noting, again, that this was not Gooden’s first

       opportunity to reform her behavior while on probation, indicating that she is a

       high risk to reoffend.


[10]   Moreover, Gooden’s history with the juvenile and criminal justice systems

       indicates that the solutions attempted at this point have not been effective in

       deterring her from further criminal activity. Gooden has been given countless

       opportunities to address her substance-abuse issues. Specifically, the trial court

       Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017   Page 5 of 6
       sanctioned Gooden seven times before revoking and imposing the suspended

       sentence, but she continued to use and overdose. As noted by the trial court,

       Gooden was “way past second chances” given all of her past probation

       violations and failure to reform. Tr. Vol. II pp. 9–10. Given Gooden’s history

       of criminal activity and failed attempts to address her substance abuse, we find

       no fault with the trial court’s rationale. Gooden has failed to establish an abuse

       of discretion.


[11]   We affirm the judgment of the trial court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1999| December 13, 2017   Page 6 of 6
