Jody A. Cliver v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 30, 2018
• Docket: 18A-CR-194
• Status: Published

Opinion

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