Desha A. Richey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2018
• Docket: 18A-CR-1489
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 9:02 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Evan K. Hammond Curtis T. Hill, Jr. Marion, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Desha A. Richey, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1489 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1511-F5-131

Mathias, Judge.

[1] The Grant Superior Court revoked Desha Richey’s (“Richey”) probation and

ordered her to serve three years executed in the Department of Correction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018 Page 1 of 5 Richey appeals and argues that the trial court abused its discretion when it

ordered her to serve her previously suspended three-year sentence.

[2] We affirm.

Facts and Procedural History [3] In July 2016, Richey pleaded guilty in Grant Superior Court to Level 5 felony

possession of a narcotic drug, Level 6 felony unlawful possession of a syringe,

and Class C misdemeanor possession of paraphernalia. She was ordered to

serve an aggregate four-year sentence, with one year executed in the

Department of Correction and three years suspended to supervised probation.

[4] On August 10, 2017, Richey tested positive for marijuana, opiates, and

amphetamines. Richey admitted that she had violated her probation. She

entered into an agreement with the State to enroll in the “Recovery Matters”

inpatient treatment program and continue her probation. Richey enrolled in an

inpatient treatment program1 on September 18, 2017, but she left the program

two days later against the advice of her treatment provider. She also failed to

report her decision to leave the program and her whereabouts to Grant County

Probation.

[5] On September 20, 2017, the State filed a petition to revoke Richey’s probation.

A fact-finding hearing was held on May 21, 2018. Richey admitted to the

1 Recovery Matters did not have available beds. Therefore, Richey began an inpatient treatment program in Merrillville, Indiana.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018 Page 2 of 5 allegations in the petition. The trial court found that Richey violated her

probation and ordered her to serve her previously suspended three-year

sentence in the Department of Correction. The court also recommended

Purposeful Incarceration. The trial court indicated it would modify Richey’s

sentence and return her to probation if she completed Purposeful Incarceration

successfully. Richey now appeals.

Standard of Review

[6] Richey contends that the trial court abused its discretion when it revoked her

probation and ordered her to serve her previously suspended three-year

sentence. Probation is a matter of grace left to the trial court’s sound discretion,

not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d

184, 188 (Ind. 2007). The trial court determines the conditions of probation and

may revoke probation if the probationer violates those conditions. Id.

[7] The trial court’s sentencing decisions for probation violations are reviewable for

an abuse of discretion. Id. An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it or where the trial court misinterprets the law. Jackson v. State, 6 N.E.3d

1040, 1042 (Ind. Ct. App. 2014).

Discussion and Decision [8] Richey admitted that she violated her probation. Therefore, the trial court had

the option of imposing one or more of the following sanctions: (1) continue

Richey’s probation, with or without modifying or enlarging the conditions; (2)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018 Page 3 of 5 extend her probationary period for not more than one year beyond the original

probationary period; or (3) order execution of all or part of the sentence that

was suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(h).

[9] Richey argues that the trial court abused its discretion when it ordered her to

serve her previously suspended three-year sentence because the court

“sentenced her without finding any mitigating factors.”2 Appellant’s Br. at 7. A

probationer who admits the allegation must be given an opportunity to offer

mitigating evidence suggesting that the violation does not warrant revocation.

See Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

[10] After admitting that she violated her probation and to using illegal substances,

Richey explained why she left the inpatient treatment center. Richey stated that

she was being sexually harassed by fellow patients, which caused her to suffer

anxiety. Tr. p. 11. Richey also admitted that she failed to report to probation

and keep her probation officer notified of her whereabouts, but stated she did so

because she was taking care of her ill grandfather.

[11] The trial court considered Richey’s testimony and noted that “the goal of

everyone is for Ms. Richey to get clean. If she gets clean, she’s got a better

chance of making good decisions.” Id. at 23. Because voluntary treatment had

not been successful, the trial court ordered executed time to be served in

2 Richey cites to Anglemyer v. State, 875 N.E.2d 218, 219 (Ind. 2007), but the holding and analysis discussed in Anglemyer applies to Indiana’s criminal sentencing statutes and not to a sentence imposed following revocation of probation. See Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018 Page 4 of 5 Purposeful Incarceration. And upon successful competition of Purposeful

Incarceration, the trial court indicated it would modify Richey’s sentence and

return her to probation. Id.

[12] The trial court thoughtfully considered Richey’s circumstances when it ordered

her to serve her previously suspended three-year sentence. For these reasons, we

conclude that the trial court did not abuse its discretion when it revoked

Richey’s probation and sentenced her accordingly.

[13] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1489 | December 31, 2018 Page 5 of 5