MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         May 30 2018, 9:03 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jody A. Cliver,                                          May 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-194
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1406-FD-1729
                                                         84D01-1503-F6-669



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-194 | May 30, 2018                       Page 1 of 5
                                       Statement of the Case
[1]   Jody A. Cliver appeals her sentence following the trial court’s revocation of her

      probation. Cliver presents a single issue for our review, namely, whether the

      trial court abused its discretion when it ordered her to serve the balance of her

      sentence in the Department of Correction. We affirm.


                                 Facts and Procedural History
[2]   In January of 2017, Cliver pleaded guilty to fraud, as a Class D felony, and to

      obtaining a controlled substance by fraud or deceit, as a Level 6 felony. In

      exchange for her guilty plea, the State dismissed three additional charges that

      were pending against Cliver, including two felony allegations. The court

      accepted Cliver’s guilty plea and sentenced her to an aggregate term of five

      years suspended to probation. In particular, the court ordered Cliver to “reside

      in and successfully complete sober living.” Appellant’s App. Vol. 2 at 19, 31.


[3]   In June, the State filed a notice of probation violation in which the State alleged

      that Cliver had been discharged from her residential program “for violating

      program rules against the use of illicit drugs and non-prescription medication.”

      Id. at 108. In a September order on that notice of probation violation, the court,

      “[b]y agreement of the parties,” ordered Cliver “released on her own

      recognizance” to a different residential program, “to reside there until further

      order of the court,” and to “comply with all rules” of the new program. Id. at

      119. The court warned that “[a]ny violation will result in defendant’s return to

      the Vigo County Jail.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-194 | May 30, 2018   Page 2 of 5
[4]   One week later, the State filed an amended notice of probation violation. In the

      amended notice, the State alleged that, following the court’s September order,

      Cliver was discharged from the second residential program “for having

      narcotics in her possession and . . . offering them to other . . . residents.” Id. at

      120. At an ensuing evidentiary hearing, Cliver admitted to the alleged

      violations at both residential programs. The court then revoked Cliver’s

      probation and ordered her to serve the balance of her five-year sentence in the

      Indiana Department of Correction. However, the court directed Cliver to serve

      purposeful incarceration and stated that, upon her successful completion of the

      clinically appropriate substance abuse treatment program, the court “will

      consider a modification to this sentence.” Id. at 136. This appeal ensued.


                                     Discussion and Decision
[5]   Cliver appeals the trial court’s order that she serve the balance of her previously

      suspended sentence. Probation is a matter of grace left to trial court discretion.

      Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a

      defendant has violated a condition of her 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) (2017). We review the trial court’s

      sentencing decision following the revocation of probation for an abuse of

      discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of

      discretion occurs “only where the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances” before the court. Robinson v.

      State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-194 | May 30, 2018   Page 3 of 5
      evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

      40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

      trial court’s judgment to determine if there was substantial evidence of

      probative value to support the court’s ruling. Id.


[6]   Here, Cliver asserts that the trial court abused its discretion when it ordered her

      to serve the balance of her previously suspended sentence because she testified

      that her possession of narcotics at the second residential program was consistent

      with a prescription, even though she mistakenly kept the narcotics in her

      possession instead of surrendering them to the program’s staff. Cliver also

      notes that her probation officer stated that he had no reason to doubt Cliver’s

      testimony that she was employed, although he had not been able to verify her

      employment, and that he had made arrangements for her to stay at a third

      residential program if so ordered by the court. Cliver further asserts that there

      was no evidence that another county had placed a hold out for her, which the

      trial court had inquired about during the evidentiary hearing.


[7]   Cliver’s arguments on appeal are inconsistent with our standard of review. In

      effect, Cliver simply asks that this court credit her testimony, which we cannot

      do. Indeed, the trial court here expressly declined to credit Cliver’s testimony.

      Tr. at 19. And neither are we persuaded that the probation officer’s

      arrangements with a third residential program and whether or not a hold

      against Cliver from another county played any role, or were required to play

      any role, in the trial court’s judgment here. Accordingly, we reject Cliver’s

      arguments on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-194 | May 30, 2018   Page 4 of 5
[8]   The trial court’s judgment is supported by substantial evidence and was within

      the court’s sound discretion. As the State points out, the trial court has treated

      Cliver “generously.” Appellee’s Br. at 8. The court originally suspended the

      entirety of her aggregate sentence. About six months later, the State filed its

      original notice of probation violation based on Cliver’s continuing attempts to

      use narcotics despite being in a residential program. But the court did not then

      order Cliver to serve the balance of her sentence. Instead, the court gave her

      another opportunity to serve her probation in a residential program and warned

      her that any further violations would result in incarceration. Yet Cliver did not

      heed the court’s warning. Rather, she again violated the conditions of her

      probation when she had narcotics on her person at the second residential

      program. And, in ordering Cliver to serve the balance of her previously

      suspended sentence, the court has continued to leave open the opportunity for

      Cliver to seek a modification upon her successful completion of purposeful

      incarceration. Thus, the court’s order that Cliver serve the balance of her term

      is supported by the record and well within the trial court’s discretion. We

      affirm the court’s judgment.


[9]   Affirmed.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-194 | May 30, 2018   Page 5 of 5
