MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                          Jun 19 2019, 9:58 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                           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
Thomas C. Allen                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Evan M. Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lonnie D. Sewell,                                        June 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3026
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Frances C. Gull, Judge
                                                         Trial Court Cause No.
                                                         02D05-1606-F6-634



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019                      Page 1 of 7
[1]   Contending that the trial court abused its discretion, Lonnie D. Sewell

      (“Sewell”) appeals the trial court’s decision to revoke his probation.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On August 9, 2016, Sewell pleaded guilty to dealing in a synthetic drug or

      lookalike substance,1 a Level 6 felony, and resisting law enforcement,2 a Class A

      misdemeanor.,. Tr. Vol. II at 9. He was sentenced to one year and 183 days for

      Count I and one year for Count II. Id. at 17. The trial court ordered the

      sentences to run concurrently with the 183 days to be executed and the one year

      to be suspended. Id.


[4]   On September 8, 2016, Sewell was ordered to serve the 183 days executed in

      the Allen County Work Release Program. Id. at 35. On September 26, 2016,

      Sewell’s placement in the work release program was revoked, and Sewell was

      ordered to serve 183 days in the Allen County Jail with a year of probation to

      follow. Id. at 53, 87.


[5]   On June 3, 2017, Sewell was arrested on charges of possession of a synthetic

      drug or lookalike substance, resisting law enforcement, and driving while

      suspended (“June 2017 charges”). Id. at 74. On November 14, 2017, the State




      1
          See Ind. Code § 35-48-4-10.5(c)(2).
      2
          See Ind. Code § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 2 of 7
      filed a petition to revoke probation. Id. at 58. Sewell admitted to the

      allegations and was placed in the Drug Court program on November 27, 2017.

      Id. at 68. On March 19, 2018, Sewell was cited for violation of Drug Court

      rules and ordered to serve one night in jail. Id. at 70.


[6]   Sewell submitted to a drug test on August 21, 2018, which was positive for

      cocaine. Tr. Vol. II at 23. Sewell also: (1) failed to submit to drug screens on

      August 20, August 27, and August 28; and (2) failed to appear in court on

      September 4. Id. Lastly, Sewell was arrested on October 23 and charged with

      resisting law enforcement, possession of cocaine, possession of a narcotic drug,

      possession of a synthetic drug, and possession of marijuana. Id.


[7]   The State filed an amended petition to revoke probation on October 29, 2018.

      Appellant’s App. Vol. II at 74. This petition included both the allegations from

      the arrest around June 2017 charges and that Sewell failed to complete Drug

      Court requirements. Id. Sewell admitted to the allegations in the petition at a

      hearing on November 5, 2018. Tr. Vol. II at 23. On the same day, Sewell’s

      placement in the Drug Court program was revoked. Id.


[8]   At the November 29, 2018 sentencing hearing, Sewell pleaded guilty to the

      June 2017 charges. Id. at 28. Sewell admitted that he was an addict and that he

      had relapsed. Id. at 32. Sewell requested alternative sentencing, but he was

      ineligible because of his pending charges. Id. In addition to sentencing him on

      the June 2017 charges, the trial court ordered Sewell’s suspended sentence




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 3 of 7
       revoked and ordered him to serve one year in DOC less the time served

       awaiting resolution of the case. Id. Sewell now appeals his sentence.


                                      Discussion and Decision
[9]    Sewell argues that his revocation of probation and subsequent executed

       sentence in DOC were inappropriate in light of the nature of the offense and the

       character of the offender. Appellant’s Br. at 18. A trial court’s action in a post-

       sentence probation violation proceeding is not a criminal sentence as articulated

       in Appellate Rule 7(B). Wooten v. State, 946 N.E.2d 616, 622 (Ind. Ct. App.

       2011) (citing Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s

       action in a post-sentence probation violation proceeding is not a criminal

       sentence as contemplated by the rule. The review and revise remedy of App. R.

       7(B) is not available.”)), trans. denied. Rather than the independent review

       afforded sentences under Appellate Rule 7(B), a trial court’s sentencing

       decisions for probation violations are reviewed for an abuse of discretion. Jones,

       885 N.E.2d at 1290. An abuse of discretion occurs where the discretion is

       clearly against the logic and effect of the facts. Knecht v. State, 85 N.E.3d 829,

       840 (Ind. Ct. App. 2017).


[10]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

       App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188. (Ind. 2007)), trans.

       denied. “Courts in probation revocation hearings ‘may consider any relevant

       evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 4 of 7
       State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

       court to determine the conditions of a defendant’s probation and to revoke

       probation if the conditions are violated.” Id. This court has stated that “all

       probation requires ‘strict compliance’” because once the trial court extends this

       grace and sets its terms and conditions, the probationer is expected to comply

       with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

       (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

       Id. If a violation is proven, the trial court must determine if the violation

       warrants revocation of the probation. Sullivan v. State, 56 N.E.3d 1157, 1160

       (Ind. Ct. App. 2016). Violating one condition of probation is enough to support

       a probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).


[11]   If the trial court concludes that the probationer has violated the terms of his

       probation, the court may: (1) continue the probation, with or without

       modifying or enlarging the conditions; (2) extend the probationary period for up

       to one year; or (3) revoke the probation and order all or part of the sentence to

       be executed. Ind. Code § 35-38-2-3(h).


[12]   Sewell argues that revoking his probation was inappropriate given the

       mitigating factors. Appellant’s Br. at 21. Revoking Sewell’s probation was not

       an abuse of discretion; indeed, revocation of probation is one of the options

       prescribed by the statute. See I.C. § 35-38-2-3(h)(3).


[13]   Here, the trial court noted many aggravating factors which contributed to its

       ordering Sewell’s suspended sentence to be served in DOC and noted that many


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 5 of 7
       rehabilitative measures that had been offered failed. Appellant’s App. Vol. I at

       100. In addition, Sewell was not eligible for alternative sentencing because of

       his pending charges. Tr. Vol. II at 34. The trial court did not abuse its

       discretion in ordering Sewell to DOC.


[14]   Sewell’s probation required that he obey the law and maintain good behavior.

       While on probation, Sewell: (1) pleaded guilty to possession of a synthetic

       drug, resisting law enforcement, and driving while suspended; and (2) tested

       positive for cocaine and failed to submit to three drug screens. Tr. Vol. II at 22-

       23. Sewell had pending charges from his arrest in October 2018 against him at

       the time of sentencing that were also from his behavior while on probation. Id.

       at 34. These violations of Sewell’s probation were sufficient to revoke

       probation.


[15]   At the sentencing hearing, the trial court noted the following aggravating

       factors: Sewell’s juvenile record, his adult criminal record, and his failed efforts

       at rehabilitation. Appellant’s App. Vol. I at 100. These failed efforts at

       rehabilitation consisted of parole, Re-Entry Court, Work Release, Drug Court,

       time served in DOC, and multiple treatment attempts. Id. Despite being

       enrolled in all these rehabilitative programs, Sewell remained a “High” risk to

       reoffend according to the IRAS. Id. at 91. The trial court must decide on what

       action to take following a violation of probation. Here, Sewell violated his

       probation on two different occasions by reoffending. Id. at 7, 74. Therefore,

       the trial court did not abuse its discretion by ordering Sewell to serve all of his

       previously suspended sentence in DOC.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 6 of 7
[16]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019   Page 7 of 7
