Christopher McGrath v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 26, 2015
• Docket: 15A04-1410-CR-507
• Status: Published

Opinion

MEMORANDUM DECISION May 26 2015, 9:03 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher McGrath, May 26, 2015

Appellant-Defendant, Court of Appeals Case No. 15A04-1410-CR-507 v. Appeal from the Dearborn Superior Court The Honorable Jonathan N. Cleary, State of Indiana, Judge Appellee-Plaintiff Cause No. 15D01-0807-FC-13

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015 Page 1 of 5 Case Summary [1] Christopher McGrath (“McGrath”) appeals an order revoking his probation

and reinstating four years of the previously-suspended portion of his six-year

sentence for Possession of a Schedule IV Controlled Substance, as a Class C

felony.1 He presents the sole issue of whether the trial court abused its

discretion by ordering reinstatement of four years, as opposed to a lesser period

of time. We affirm.

Facts and Procedural History [2] On April 7, 2009, McGrath pled guilty to possession of a schedule IV controlled

substance. He was sentenced to 2,920 days imprisonment, with 2,190 days

suspended to probation. Among the conditions of probation were that

McGrath refrain from the use of illegal drugs and obey all laws.

[3] On July 14, 2014, an allegation of probation violation was filed against

McGrath. A fact-finding hearing was conducted on October 16, 2014, at which

McGrath admitted he had tested positive for cocaine and had been convicted of

two new offenses in the State of Ohio.

1 Ind. Code § 35-48-4-7(a)(2)(A). We refer to the version of the statute in effect at the time of McGrath’s offense.

Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015 Page 2 of 5 [4] After finding that McGrath had violated the terms of his probation, the trial

court ordered McGrath’s probation revoked and that he be incarcerated for four

years of the previously-suspended portion of his sentence. McGrath appeals.

Discussion and Decision [5] Placement on probation is a conditional liberty and not a right. Cox v. State, 706

N.E.2d 547, 549 (Ind. 1999). A probation revocation hearing is in the nature of

a civil proceeding and, therefore, the violation need only be proven by a

preponderance of the evidence. Smith v. State, 727 N.E.2d 763, 765 (Ind. Ct.

App. 2000). Proof of a single violation of the conditions of probation is

sufficient to support a decision to revoke probation. Bussberg v. State, 827

N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.

[6] Indiana Code Section 35-38-2-3(h) sets forth a trial court’s sentencing options

where a probation violation has been found:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions: (1) Continue the person on probation, with or without modifying or enlarging the conditions. (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing. [7] We review the trial court’s revocation of probation and sentencing decision for

an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015 Page 3 of 5 An abuse of discretion occurs if the decision is clearly against the logic and

effect of the facts and circumstances before the court. Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). Generally speaking, as long as the trial court

follows the procedures outlined in Indiana Code Section 35-38-2-3, the trial

court may properly order execution of a suspended sentence. Abernathy v. State,

852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006).

[8] On July 6, 2010, McGrath was released to probation and signed his notice of

probation conditions. On July 14, 2014, the State alleged that McGrath had

violated the terms of his probation, having been convicted of possession of

heroin and illegal use of paraphernalia in Hamilton County, Ohio. It was also

alleged that McGrath had failed a drug screen administered by probation

officers in Ohio, by testing positive for cocaine. At the probation revocation

hearing, McGrath admitted the truth of the foregoing allegations.

[9] Indeed, McGrath does not contest the sufficiency of this evidence to establish

one or more probation violations on his part. Rather, he claims that he is

deserving of leniency because he participated in intensive drug therapy as part

of his incarceration in Ohio and his dependents need his income.

[10] The trial court had an ample basis for the probation revocation decision and

sentence reinstatement. It is noteworthy that, despite McGrath’s desire for

leniency, he has a lengthy history of failing to benefit from rehabilitative efforts.

In 2007, he was convicted of Possession of a Legend Drug and released to

probation. He violated probation and was convicted of Deception to Obtain a

Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015 Page 4 of 5 Dangerous Drug in Ohio. He then was convicted of the possession offense in

Indiana. McGrath has not demonstrated an abuse of the trial court’s discretion

in the probation revocation proceedings.

[11] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A04-1410-CR-507| May 26, 2015 Page 5 of 5