MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Aug 06 2018, 8:50 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andrea Brown, August 6, 2018
Appellant-Defendant, Court of Appeals Case No. 18A-CR-30 v. Appeal from the Allen Superior Court
State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge
Trial Court Cause No. 02D04-1612-F6-1345
Darden, Senior Judge.
Statement of the Case [1] Appellant Andrea Brown appeals the trial court’s imposition of her previously
suspended sentence following the revocation of her probation. We affirm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 1 of 6 Issue [2] Brown presents one issue for our review, which we restate as: whether the trial
court abused its discretion by ordering Brown to serve her previously suspended
sentence.
Facts and Procedural History [3] On December 8, 2016, Brown was found by police officers in a car with an
unconscious male who had overdosed on drugs. Inside the vehicle, which
belonged to Brown, police located a used syringe and a glass smoking pipe
containing residue of what was later confirmed to be marijuana. Four
additional syringes were found in Brown’s purse. Brown told the officers she,
the male, and another female had come to town to purchase drugs. Based on
this incident, Brown was charged with unlawful possession of a syringe, a Level 1 2 6 felony; possession of marijuana, a Class B misdemeanor; and possession of 3 paraphernalia, a Class C misdemeanor. On June 29, 2017, pursuant to a plea
agreement, Brown pleaded guilty to unlawful possession of a syringe, and the
State agreed to dismiss the remaining two charges. At sentencing, Brown was
sentenced to one year and 183 days, all suspended to probation.
1 Ind. Code § 16-42-19-18 (2015). 2 Ind. Code § 35-48-4-11 (2014). 3 Ind. Code § 35-48-4-8.3 (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 2 of 6 [4] Not quite three months thereafter, on September 21, 2017, the State filed a
verified petition for revocation of probation alleging that Brown had violated
her probation by committing additional criminal offenses, specifically
possession of a narcotic drug and unlawful possession of a syringe, both Level 6
felonies. At a hearing on the State’s petition on October 16, 2017, Brown
admitted the violation. The trial court took her admission under advisement
and placed her in the Drug Court Program. Upon Brown’s successful
completion of the program, the State agreed to dismiss the new charges and
show a satisfactory release from probation in the present case. Pursuant to the
Drug Court Program participation agreement that Brown signed upon entering
the program, she was required to successfully attend and complete all treatment
programs, refrain from possessing, ingesting, using, selling, or distributing any
illegal drugs, alcoholic beverages, or paraphernalia, and obey all laws and
maintain good behavior.
[5] On November 6, 2017, Brown’s Drug Court Program case manager filed a
verified petition to terminate Brown’s participation in the program. The
petition alleged that Brown had violated the terms and conditions of the
program by using heroin while residing at the inpatient treatment facility and
had been found in possession of urine or a look-a-like substance to be used to
interfere with a urine screen. Following a hearing where Brown admitted to the
violations, the court terminated Brown from the Drug Court Program. The
State then filed a second verified petition for revocation of probation based on
Brown’s failure to successfully complete the Drug Court Program. After
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 3 of 6 conducting a hearing, the trial court found Brown violated her probation,
revoked her probation, and ordered her to serve her suspended sentence in the
Indiana Department of Correction. This appeal ensued.
Discussion and Decision [6] Brown contends the trial court abused its discretion when, upon revoking her
probation, it ordered her to serve the entirety of her suspended sentence. In
support of her argument for leniency, she points to the fact that this is her first
adult felony conviction and that she accepted responsibility for her actions.
[7] A defendant is not entitled to serve a sentence on probation; rather, such
placement is a matter of grace and a conditional liberty that is a favor, not a
right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.
Further, probation is a criminal sanction wherein a convicted defendant
specifically agrees to accept conditions upon her behavior in lieu of
imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),
trans. denied. These restrictions are designed to ensure that the probation serves
as a period of genuine rehabilitation and that the public is not harmed by a
probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005).
[8] At the time of Brown’s violations, Indiana Code section 35-38-2-3(h) (2015)
provided that if the court finds a violation of a condition of probation, it may:
(1) continue the person on probation, with or without modifying the conditions;
(2) extend the person’s probationary period for not more than one year; and/or
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 4 of 6 (3) order execution of all or part of the sentence that was suspended at the time of initial
sentencing. (Emphasis added). A trial court’s sentencing decisions for probation
violations are reviewed for an abuse of discretion. Wilkerson v. State, 918
N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse of discretion occurs when the
decision is clearly against the logic and effect of the facts and circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[9] Brown had been abusing drugs for over eight years and was involved in a
dangerous drug situation when she was arrested on the current charges. The
trial court afforded her an opportunity to avoid incarceration altogether by
giving her a completely suspended sentence, for which she accepted probation
and agreed to limitations on her behavior. However, in less than three months,
Brown was charged with two additional Level 6 felony drug charges and was
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Aug 06 2018, 8:50 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andrea Brown, August 6, 2018
Appellant-Defendant, Court of Appeals Case No. 18A-CR-30 v. Appeal from the Allen Superior Court
State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge
Trial Court Cause No. 02D04-1612-F6-1345
Darden, Senior Judge.
Statement of the Case [1] Appellant Andrea Brown appeals the trial court’s imposition of her previously
suspended sentence following the revocation of her probation. We affirm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 1 of 6 Issue [2] Brown presents one issue for our review, which we restate as: whether the trial
court abused its discretion by ordering Brown to serve her previously suspended
sentence.
Facts and Procedural History [3] On December 8, 2016, Brown was found by police officers in a car with an
unconscious male who had overdosed on drugs. Inside the vehicle, which
belonged to Brown, police located a used syringe and a glass smoking pipe
containing residue of what was later confirmed to be marijuana. Four
additional syringes were found in Brown’s purse. Brown told the officers she,
the male, and another female had come to town to purchase drugs. Based on
this incident, Brown was charged with unlawful possession of a syringe, a Level 1 2 6 felony; possession of marijuana, a Class B misdemeanor; and possession of 3 paraphernalia, a Class C misdemeanor. On June 29, 2017, pursuant to a plea
agreement, Brown pleaded guilty to unlawful possession of a syringe, and the
State agreed to dismiss the remaining two charges. At sentencing, Brown was
sentenced to one year and 183 days, all suspended to probation.
1 Ind. Code § 16-42-19-18 (2015). 2 Ind. Code § 35-48-4-11 (2014). 3 Ind. Code § 35-48-4-8.3 (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 2 of 6 [4] Not quite three months thereafter, on September 21, 2017, the State filed a
verified petition for revocation of probation alleging that Brown had violated
her probation by committing additional criminal offenses, specifically
possession of a narcotic drug and unlawful possession of a syringe, both Level 6
felonies. At a hearing on the State’s petition on October 16, 2017, Brown
admitted the violation. The trial court took her admission under advisement
and placed her in the Drug Court Program. Upon Brown’s successful
completion of the program, the State agreed to dismiss the new charges and
show a satisfactory release from probation in the present case. Pursuant to the
Drug Court Program participation agreement that Brown signed upon entering
the program, she was required to successfully attend and complete all treatment
programs, refrain from possessing, ingesting, using, selling, or distributing any
illegal drugs, alcoholic beverages, or paraphernalia, and obey all laws and
maintain good behavior.
[5] On November 6, 2017, Brown’s Drug Court Program case manager filed a
verified petition to terminate Brown’s participation in the program. The
petition alleged that Brown had violated the terms and conditions of the
program by using heroin while residing at the inpatient treatment facility and
had been found in possession of urine or a look-a-like substance to be used to
interfere with a urine screen. Following a hearing where Brown admitted to the
violations, the court terminated Brown from the Drug Court Program. The
State then filed a second verified petition for revocation of probation based on
Brown’s failure to successfully complete the Drug Court Program. After
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 3 of 6 conducting a hearing, the trial court found Brown violated her probation,
revoked her probation, and ordered her to serve her suspended sentence in the
Indiana Department of Correction. This appeal ensued.
Discussion and Decision [6] Brown contends the trial court abused its discretion when, upon revoking her
probation, it ordered her to serve the entirety of her suspended sentence. In
support of her argument for leniency, she points to the fact that this is her first
adult felony conviction and that she accepted responsibility for her actions.
[7] A defendant is not entitled to serve a sentence on probation; rather, such
placement is a matter of grace and a conditional liberty that is a favor, not a
right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.
Further, probation is a criminal sanction wherein a convicted defendant
specifically agrees to accept conditions upon her behavior in lieu of
imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),
trans. denied. These restrictions are designed to ensure that the probation serves
as a period of genuine rehabilitation and that the public is not harmed by a
probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005).
[8] At the time of Brown’s violations, Indiana Code section 35-38-2-3(h) (2015)
provided that if the court finds a violation of a condition of probation, it may:
(1) continue the person on probation, with or without modifying the conditions;
(2) extend the person’s probationary period for not more than one year; and/or
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 4 of 6 (3) order execution of all or part of the sentence that was suspended at the time of initial
sentencing. (Emphasis added). A trial court’s sentencing decisions for probation
violations are reviewed for an abuse of discretion. Wilkerson v. State, 918
N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse of discretion occurs when the
decision is clearly against the logic and effect of the facts and circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[9] Brown had been abusing drugs for over eight years and was involved in a
dangerous drug situation when she was arrested on the current charges. The
trial court afforded her an opportunity to avoid incarceration altogether by
giving her a completely suspended sentence, for which she accepted probation
and agreed to limitations on her behavior. However, in less than three months,
Brown was charged with two additional Level 6 felony drug charges and was
facing a probation violation. Rather than revoking Brown’s probation as it
could have done, the court again generously allowed her to participate in
inpatient treatment through the Drug Court Program. Completion of the
program would, presumably, have meant Brown was drug free but also would
have obtained for her dismissal of the new charges and satisfactory release from
probation in the present case. Yet, Brown went to the inpatient facility on
October 27, 2017, and, just three days later on October 30, 2017, squandered
the opportunity by using heroin at the facility as well as using another
individual’s urine in order to pass a urine drug screen.
[10] Brown has repeatedly demonstrated her unwillingness to comply with the
conditions of her probation and to conform her behavior to lead a law-abiding
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 5 of 6 life, even when confined to an inpatient facility. Within four months of
pleading to a felony drug offense, she had violated her probation twice and had
accumulated two new felony drug offenses. Moreover, she failed to take
advantage of a second opportunity—Brown informed the court she had
previously been through treatment, after which she had remained “clean” for
twenty-two months—to change her behavior and become drug free when the
court afforded her leniency in her initial transgressions. Tr. p. 28. Considering
the number and serious nature of Brown’s violations within the first few months
of her probationary period, we find nothing to suggest that she will comply with
probation conditions or facility rules in the future.
Conclusion [11] For the reasons stated, we conclude the trial court properly exercised its
discretion in ordering Brown to serve her previously suspended sentence upon
revocation of her probation in this matter.
[12] Affirmed.
Vaidik, C.J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-30 | August 6, 2018 Page 6 of 6