MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 29 2017, 10:12 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 Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bailey N. Blueher, June 29, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1611-CR-2673 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-1510-F6-2476 84D01-1511-F4-2585 84D01-1602-F6-304
Barnes, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 1 of 6 [1] Bailey Blueher appeals the trial court’s decision to revoke his probation and
impose the remainder of his previously-suspended sentence. We affirm.
Issue
[2] The restated issue on appeal is whether the trial court abused its discretion
when it revoked Blueher’s probation and imposed the remainder of his sentence
to be served in prison.
Facts
[3] On October 13, 2015, Blueher was charged with Level 6 felony auto theft and
Class B misdemeanor leaving the scene of an accident. On October 23, 2015,
Blueher was charged with Level 4 felony burglary and Level 6 felony theft. On
February 2, 2016, Blueher was charged with Level 6 felony receiving stolen
auto parts and Level 6 felony theft.
[4] On May 24, 2016, Blueher pled guilty to two counts of Level 6 felony theft and
one count of Level 6 felony auto theft, and the rest of the counts were
dismissed. Pursuant to a plea agreement, the parties agreed to a seven-year
sentencing cap. During the hearing, Blueher testified that his relationship with
his family had become strained and that his mother had discontinued contact
with him. Blueher also stated that he had problems with marijuana and alcohol
and that he believed he would benefit from counseling. The trial court
sentenced Blueher to one-and-one-half years for each count to be served
consecutively, for a total sentence of four-and-one-half years, which the trial
court suspended to probation. As a condition of probation, the trial court
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 2 of 6 required Blueher to enroll in and complete cognitive behavioral therapy.
Blueher would also be required to complete frequent drug screens and report to
his probation officer daily. In addition, the court required Blueher to seek out
employment or vocational training and to receive treatment through certain
medical providers. Blueher did not appeal or object to any of the conditions
imposed.
[5] On June 2, 2016, the State filed a notice of violation of probation. During the
disposition hearing, on July 6, 2016, Blueher admitted to violating probation.
On July 13, 2016, the trial court found that Blueher had violated his probation
and sentenced him to time served. Blueher was returned to probation.
[6] On August 1, 2016, the State filed a second notice of violation of probation,
alleging that Blueher tested positive for marijuana, missed a drug screen, failed
to call the UA line, failed to report daily to his probation officer, and failed to
provide his probation officer with his address.
[7] A disposition hearing was held on September 20, 2016. During the hearing,
Blueher admitted to the violations alleged in the State’s notice. The trial court
found that Blueher had violated his probation but ordered Blueher to be
evaluated for work release and other community placement options. A
sentencing hearing was held on October 19, 2016. During the hearing, the trial
court received a report that Blueher did not qualify for community placement.
The trial court stated that, “it had tried everything available … and [Blueher]
had not made it work.” Tr. Vol. III p. 9. The trial court imposed the remainder
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 3 of 6 of Blueher’s previously-suspended sentenced to be served in the Department of
Corrections (“DOC”).
Analysis
[8] Blueher argues that the trial court abused its discretion and imposed an
inappropriate sentence, “by ordering conditions of probation that required
[Blueher] to enroll or participate in programs which he could not pay for.”
Appellant’s Br. p. 8. A trial court has broad discretion in establishing
conditions of probation to safeguard the general public. Patton v. State, 990
N.E.2d 511, 514 (Ind. Ct. App. 2013). Conditions of probation should reflect
the supervision required to achieve probation goals and must be functionally
and rationally related to the probationer’s needs and to society’s interest. Id.
We therefore review conditions of probation for an abuse of discretion. Id. An
abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstance before the court, or reasonable inferences to
be drawn therefrom. Id.
[9] Blueher admits that he did not appeal the trial court’s initial sentencing order
and he did not object to or contest any of the conditions of probation imposed.
By failing to object to the conditions of probation at the sentencing hearing,
Blueher failed to properly preserve this issue for appellate review. See Hale v.
State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008). Also, a party cannot
collaterally challenge an original sentence in the context of probation
revocation. Johnson v. State, 62 N.E.3d 1224, 1230 (Ind. Ct. App. 2016).
Moreover, if Blueher’s objection to the conditions of probation had not been Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 4 of 6 waived, the State charged him with a violation because he missed drug screens,
tested positive for marijuana, and because he failed to report to his probation
officer. The violations alleged did not include failure to enroll or participate in
programs for which he could not pay.
[10] Blueher also erroneously relies on Indiana Appellate Rule 7(B), which gives this
court the authority to revise a sentence imposed by the trial court if we find that
it was inappropriate. See Prewitt v. State, 878 N.E.2d 184 (Ind. 2007) (holding
that inappropriate sentence analysis is inapplicable in probation revocation
cases). A trial court’s sentencing decisions for probation violations are
reviewable using the abuse of discretion standard. Id. at 188. When reviewing
revocation of probation, this court only looks at the sentence imposed after
revocation, and not the terms of the initial sentence. See Johnson, 62 N.E.3d at
1230. We therefore will only reverse if the trial court decision is clearly against
the logic and effect of the facts and circumstances. Id.
[11] Here, Blueher admitted to the violations of probation alleged in the State’s
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 29 2017, 10:12 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 Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bailey N. Blueher, June 29, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1611-CR-2673 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff. Judge Trial Court Cause No. 84D01-1510-F6-2476 84D01-1511-F4-2585 84D01-1602-F6-304
Barnes, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 1 of 6 [1] Bailey Blueher appeals the trial court’s decision to revoke his probation and
impose the remainder of his previously-suspended sentence. We affirm.
Issue
[2] The restated issue on appeal is whether the trial court abused its discretion
when it revoked Blueher’s probation and imposed the remainder of his sentence
to be served in prison.
Facts
[3] On October 13, 2015, Blueher was charged with Level 6 felony auto theft and
Class B misdemeanor leaving the scene of an accident. On October 23, 2015,
Blueher was charged with Level 4 felony burglary and Level 6 felony theft. On
February 2, 2016, Blueher was charged with Level 6 felony receiving stolen
auto parts and Level 6 felony theft.
[4] On May 24, 2016, Blueher pled guilty to two counts of Level 6 felony theft and
one count of Level 6 felony auto theft, and the rest of the counts were
dismissed. Pursuant to a plea agreement, the parties agreed to a seven-year
sentencing cap. During the hearing, Blueher testified that his relationship with
his family had become strained and that his mother had discontinued contact
with him. Blueher also stated that he had problems with marijuana and alcohol
and that he believed he would benefit from counseling. The trial court
sentenced Blueher to one-and-one-half years for each count to be served
consecutively, for a total sentence of four-and-one-half years, which the trial
court suspended to probation. As a condition of probation, the trial court
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 2 of 6 required Blueher to enroll in and complete cognitive behavioral therapy.
Blueher would also be required to complete frequent drug screens and report to
his probation officer daily. In addition, the court required Blueher to seek out
employment or vocational training and to receive treatment through certain
medical providers. Blueher did not appeal or object to any of the conditions
imposed.
[5] On June 2, 2016, the State filed a notice of violation of probation. During the
disposition hearing, on July 6, 2016, Blueher admitted to violating probation.
On July 13, 2016, the trial court found that Blueher had violated his probation
and sentenced him to time served. Blueher was returned to probation.
[6] On August 1, 2016, the State filed a second notice of violation of probation,
alleging that Blueher tested positive for marijuana, missed a drug screen, failed
to call the UA line, failed to report daily to his probation officer, and failed to
provide his probation officer with his address.
[7] A disposition hearing was held on September 20, 2016. During the hearing,
Blueher admitted to the violations alleged in the State’s notice. The trial court
found that Blueher had violated his probation but ordered Blueher to be
evaluated for work release and other community placement options. A
sentencing hearing was held on October 19, 2016. During the hearing, the trial
court received a report that Blueher did not qualify for community placement.
The trial court stated that, “it had tried everything available … and [Blueher]
had not made it work.” Tr. Vol. III p. 9. The trial court imposed the remainder
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 3 of 6 of Blueher’s previously-suspended sentenced to be served in the Department of
Corrections (“DOC”).
Analysis
[8] Blueher argues that the trial court abused its discretion and imposed an
inappropriate sentence, “by ordering conditions of probation that required
[Blueher] to enroll or participate in programs which he could not pay for.”
Appellant’s Br. p. 8. A trial court has broad discretion in establishing
conditions of probation to safeguard the general public. Patton v. State, 990
N.E.2d 511, 514 (Ind. Ct. App. 2013). Conditions of probation should reflect
the supervision required to achieve probation goals and must be functionally
and rationally related to the probationer’s needs and to society’s interest. Id.
We therefore review conditions of probation for an abuse of discretion. Id. An
abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstance before the court, or reasonable inferences to
be drawn therefrom. Id.
[9] Blueher admits that he did not appeal the trial court’s initial sentencing order
and he did not object to or contest any of the conditions of probation imposed.
By failing to object to the conditions of probation at the sentencing hearing,
Blueher failed to properly preserve this issue for appellate review. See Hale v.
State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008). Also, a party cannot
collaterally challenge an original sentence in the context of probation
revocation. Johnson v. State, 62 N.E.3d 1224, 1230 (Ind. Ct. App. 2016).
Moreover, if Blueher’s objection to the conditions of probation had not been Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 4 of 6 waived, the State charged him with a violation because he missed drug screens,
tested positive for marijuana, and because he failed to report to his probation
officer. The violations alleged did not include failure to enroll or participate in
programs for which he could not pay.
[10] Blueher also erroneously relies on Indiana Appellate Rule 7(B), which gives this
court the authority to revise a sentence imposed by the trial court if we find that
it was inappropriate. See Prewitt v. State, 878 N.E.2d 184 (Ind. 2007) (holding
that inappropriate sentence analysis is inapplicable in probation revocation
cases). A trial court’s sentencing decisions for probation violations are
reviewable using the abuse of discretion standard. Id. at 188. When reviewing
revocation of probation, this court only looks at the sentence imposed after
revocation, and not the terms of the initial sentence. See Johnson, 62 N.E.3d at
1230. We therefore will only reverse if the trial court decision is clearly against
the logic and effect of the facts and circumstances. Id.
[11] Here, Blueher admitted to the violations of probation alleged in the State’s
notice, and violation of a single condition of probation is sufficient to revoke
probation. Richards v. State, 890 N.E.2d 766, 768 (Ind. Ct. App. 2008). Blueher
violated probation by testing positive for drugs, failing to report to his probation
officer, and failing to submit to drug screens. The trial court has wide discretion
in imposing a sentence after a violation of probation is found. Even though the
trial court was not required to issue a detailed statement for the sanctions that it
imposed, the transcript clearly indicates that the trial court did not have other
placement options for Blueher, other than prison, because he did not qualify for
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 5 of 6 them. In fact, the trial court stated that, “[Blueher] may turn around and be
qualified for CTP back in Vigo County, and if that happens … I would only
approve that.” Tr. Vol. III p. 9. The trial court did not abuse its discretion by
imposing the remainder of Blueher’s previously suspended sentence.
Conclusion
[12] The trial court did not abuse its discretion by revoking Blueher’s probation and
imposing the remainder of his sentence to be served in prison. We affirm.
[13] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2673 | June 29, 2017 Page 6 of 6