MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                   May 24 2017, 10:07 am
court except for the purpose of establishing                     CLERK
the defense of res judicata, collateral                      Indiana Supreme Court
                                                                Court of Appeals
estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William S. Matherly,                                    May 24, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A04-1701-CR-198
        v.                                              Appeal from the Vigo County
                                                        Superior Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        84D01-1209-FC-2974
                                                        84D01-1207-FB-2176



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017    Page 1 of 6
[1]   William S. Matherly appeals the trial court’s order, following revocation of his

      probation, that Matherly serve the remainder of his sentence in the Department

      of Correction (“DOC”). We affirm.



                                Facts and Procedural History
[2]   In 2012, under two different cause numbers, Matherly was charged with Class

      B felony unlawful possession of a firearm by a serious violent felon, 1 Class C

      felony possession of an altered handgun, 2 and Class C felony burglary. 3

      Pursuant to a plea agreement, he pled guilty to possession of an altered

      handgun in one cause and burglary in the other cause. He was sentenced to

      four years on the possession charge with “[t]wo (2) years of said sentence . . .

      executed on Work Release.” (App. Vol. 2 at 63.) He was also sentenced to a

      consecutive six-year sentence for the burglary charge. “Two (2) years of said

      sentence [to] be executed on Work Release . . . and four (4) years . . .

      suspended. [Matherly wa]s placed on formal probation for four (4) years.” (Id.

      at 64.)


[3]   In 2015, the State filed a petition to revoke probation alleging Matherly had

      failed drug screens for methamphetamine and marijuana. The trial court

      ordered Matherly be “returned to probation pursuant to the original terms and



      1
          Ind. Code § 35-47-4-5 (2012).
      2
          Ind. Code § 35-47-2-18 (1983) and Ind. Code § 35-47-2-23 (1997).
      3
          Ind. Code § 35-43-2-1 (1999).


      Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017   Page 2 of 6
      conditions [and to] enter Freebirds Solutions, Inc. . . . until he is successfully

      discharged[.]” (Id. at 87-88.) However, on October 20, 2016, the State filed

      another petition to revoke in which it asserted Matherly had been arrested for

      two new charges and tested positive for marijuana and methamphetamine. (Id.

      at 91.) Matherly admitted the violations, but the State and Matherly could not

      agree as to the sanction.


[4]   At the hearing on that petition, Matherly’s probation officer, Amber

      Lowdermilk, stated Matherly “does well with structure,” (Tr. at 15), but noted

      when she referred Matherly for outpatient alcohol and drug counseling, she did

      not “believe that was ever followed up on.” (Id. at 13.) “[G]iven [Matherly’s]

      prior violations and issues with the probation,” Lowdermilk did not believe he

      would “be successful on probation [and] the only option [she] would think of

      [as a viable alternative] is in-patient or DOC.” (Id.)


[5]   Matherly and his wife testified that his wife was homeless, disabled, and

      depended on him for care. Matherly also testified that he was currently

      unemployed due to the arrest underlying the probation violation, but he “was

      going to be hired [at Burger King in Brazil, Indiana] right before he was

      arrested.” (Id. at 18.) Matherly said his wife had checked with the manager at

      Burger King and “[the manager] said that she would still give [him] a chance.”

      (Id.) Matherly admitted he had addiction issues and requested “to be placed in

      the Jail Linkage Program and [given] another chance at a Sober Living




      Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017   Page 3 of 6
      environment.” (Id. at 21.) The trial court ordered Matherly to serve the

      remainder of his sentence for the burglary conviction at the DOC. 4



                                    Discussion and Decision
[6]   Matherly asserts the trial court abused its discretion in ordering him to serve the

      remainder of his sentence in the DOC when it is an undue hardship for his

      disabled wife, he suffers from substance abuse addiction, and there is a “less

      restrictive and more reasonable alternative available.” (Appellant’s Br. at 8.)

      The alternative to which he points is Vigo County’s Jail Linkage program.


[7]   Matherly admitted his violation, and “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), reh’g

      denied, trans. denied. On finding a defendant violated his probation, the trial

      court may “[o]rder execution of all or part of the sentence that was suspended

      at the time of initial sentencing.” Ind. Code § 35-38-2-3(h)(3). We affirm the

      sanction imposed by a trial court following a probation violation unless the trial

      court abused its discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

      “An abuse of discretion occurs where the decision is clearly against the logic

      and effect of the facts and circumstances.” Id. When reviewing the decision,

      we consider only the evidence most favorable to the judgment without assessing




      4
          The State and Matherly agreed the sentence for the possession of the altered handgun had been completed.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017                Page 4 of 6
      the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

      2005).


[8]   Matherly had a previous probation violation, for which the trial court allowed

      him to remain on probation and to seek treatment for his addiction issues.

      However, Matherly again tested positive for marijuana and methamphetamine

      in 2016. Following testimony from his probation officer, himself, and his wife,

      the trial court ordered Matherly to serve the remainder of his sentence in the

      DOC. The trial court had given Matherly a chance to take advantage of

      addiction counseling but he continued to use drugs and commit other crimes.

      Even if we assume, for the sake of argument, Matherly could help his wife if he

      were not in the DOC, we cannot find an abuse of discretion in the trial court’s

      order for him to serve the remainder of his sentence in the DOC as Matherly

      had squandered opportunities given to him by the trial court. See Cox v. State,

      850 N.E.2d 485, 491 (Ind. Ct. App. 2006) (no abuse of discretion when court

      ordered Cox to serve the remainder of his suspended sentence after failing to

      comply with substance abuse recommendations and being arrested for

      subsequent crimes).



                                              Conclusion
[9]   Matherly has not demonstrated the trial court abused its discretion in ordering

      execution of the remainder of his sentence in the DOC. Accordingly, we

      affirm.



      Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017   Page 5 of 6
[10]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017   Page 6 of 6
