MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 05 2020, 11:26 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 ATTORNEY FOR APPELLEE Andrew B. Arnett Angela N. Sanchez Indianapolis, Indiana Assistant Section Chief, Criminal Appeals Office of Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kari Christina Spray, June 5, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2250 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Peter D. Nugent, Appellee-Plaintiff, Judge Trial Court Cause No. 41D02-1805-F6-226
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 1 of 7 Case Summary and Issue [1] Kari Spray appeals the trial court’s revocation of her suspended sentence raising
one issue for our review, namely whether the trial court abused its discretion in
ordering her to serve her entire previously suspended sentence at the Indiana
Department of Correction (“DOC”). Concluding the trial court did not abuse
its discretion in imposing this sanction, we affirm.
Facts and Procedural History [2] On September 19, 2018, Spray pleaded guilty to theft and resisting law
enforcement as Class A misdemeanors. The trial court sentenced Spray to
serve 365 days in the county jail – seventy-seven (thirty-nine actual) days
executed and 288 days suspended to active probation – and ordered that she
complete a mental health evaluation and any recommended treatment.1
Appellant’s Appendix, Volume 2 at 10-11.
[3] On April 23, 2019, Spray’s probation officer filed a Petition to Revoke
Probation and Request for Warrant that was amended twice, ultimately alleging
Spray violated the following terms of her probation:
1. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about April 9, 2019, [Spray] was charged in Scott County, Indiana, on cause 72C01-1904-CM-000149 with Ct. I:
1 This sentence was ordered to be served consecutively to a sentence in another case that, although it was also addressed in these probation revocation proceedings, is not subject to this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 2 of 7 Domestic Battery, Class A Misdemeanor and Ct. II: Resisting Law Enforcement, Class A Misdemeanor.
2. Not to Purchase, Consume or Possess any Alcoholic Beverage; to wit: On or about April 9, 2019, [Spray] was arrested in Scott County, Indiana and charged on cause 72C01-1904-CM- 000149. The affidavit for probable cause indicates [Spray] was intoxicated.
3. Contact Probation within 72 Hours of Incarceration; . . . [Spray] notified this officer of the [April 9] arrest via e-mail on April 22, 2019.
4. Not to Purchase, Consume or Possess Any Alcoholic Beverage; to wit: On or about June 14, 2019, [Spray] tested positive for alcohol on a urine drug screen conducted at the Johnson County Adult Probation Department.
5. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about June 14, 2019, [Spray] was charged in Jackson County, Indiana on cause 36D01-1906-CM-000659 with Ct. I: Criminal Trespass, Class A Misdemeanor.
6. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about June 14, 2019, [Spray] was charged in Jackson County, Indiana, on cause 36D01-1906-CM-000660 with [seven counts of] Unlawful Use of 911 Service, [all] Class A Misdemeanor[s].
Id. at 36.
[4] A revocation hearing was held on August 7, 2019, during which Spray testified
that, aside from her arrests, she was compliant with the terms of her probation:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 3 of 7 I showed up at every appointment, every random drug screen I showed up, I never missed a court hearing, I actually voluntarily went to mental health crisis emergency places in Indianapolis. I got evaluated, they diagnosed me with multiple disorders, mental health issues. And I was going to follow up with them but then I got arrested here.
Transcript, Volume 2 at 10. With respect to the Jackson County charges, Spray
testified “[t]here’s an alleged child abuse, and my children are in . . . their
father’s care . . . he’s abused them in the past, he’s been charged with child
abuse in the past. . . . And the charges are related to that.” Id. at 11. The trial
court found that Spray violated the terms of her probation, revoked her
probation, and ordered that she serve her entire previously suspended sentence
(288 days) at the DOC. Spray now appeals.
Discussion and Decision I. Standard of Review Probation is a matter of grace and a conditional liberty which is a favor, not a right. The trial court determines the conditions of probation and may revoke probation if those conditions are violated. The decision to revoke probation is within the sound discretion of the trial court. And its decision is reviewed on appeal for abuse of that discretion. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Further, on appeal “we consider only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of the witnesses. . . .”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 4 of 7 Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012) (citations omitted).
And we also review a trial court’s sentencing decisions for probation violations
for an abuse of discretion. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.
2017).
II. Sanction for Probation Violation [5] As our supreme court has explained, the revocation of an individual’s probation
is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). “First,
the court must make a factual determination that a violation of a condition of
probation actually occurred. If a violation is proven, then the trial court must
determine if the violation warrants revocation of the probation.” Id. If the trial
court finds that a violation of probation has occurred, it may impose one 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.
Ind. Code § 35-38-2-3(h).
[6] Spray does not dispute that she violated the terms of her probation. Her sole
argument is that trial court abused its discretion in imposing the maximum
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 5 of 7 sanction because the trial court “failed to look at her performance on probation
as a whole.” Brief of Appellant at 9. Specifically, Spray argues that because
she was compliant with other terms of her probation – mental health treatment,
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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 05 2020, 11:26 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 ATTORNEY FOR APPELLEE Andrew B. Arnett Angela N. Sanchez Indianapolis, Indiana Assistant Section Chief, Criminal Appeals Office of Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kari Christina Spray, June 5, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2250 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Peter D. Nugent, Appellee-Plaintiff, Judge Trial Court Cause No. 41D02-1805-F6-226
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 1 of 7 Case Summary and Issue [1] Kari Spray appeals the trial court’s revocation of her suspended sentence raising
one issue for our review, namely whether the trial court abused its discretion in
ordering her to serve her entire previously suspended sentence at the Indiana
Department of Correction (“DOC”). Concluding the trial court did not abuse
its discretion in imposing this sanction, we affirm.
Facts and Procedural History [2] On September 19, 2018, Spray pleaded guilty to theft and resisting law
enforcement as Class A misdemeanors. The trial court sentenced Spray to
serve 365 days in the county jail – seventy-seven (thirty-nine actual) days
executed and 288 days suspended to active probation – and ordered that she
complete a mental health evaluation and any recommended treatment.1
Appellant’s Appendix, Volume 2 at 10-11.
[3] On April 23, 2019, Spray’s probation officer filed a Petition to Revoke
Probation and Request for Warrant that was amended twice, ultimately alleging
Spray violated the following terms of her probation:
1. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about April 9, 2019, [Spray] was charged in Scott County, Indiana, on cause 72C01-1904-CM-000149 with Ct. I:
1 This sentence was ordered to be served consecutively to a sentence in another case that, although it was also addressed in these probation revocation proceedings, is not subject to this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 2 of 7 Domestic Battery, Class A Misdemeanor and Ct. II: Resisting Law Enforcement, Class A Misdemeanor.
2. Not to Purchase, Consume or Possess any Alcoholic Beverage; to wit: On or about April 9, 2019, [Spray] was arrested in Scott County, Indiana and charged on cause 72C01-1904-CM- 000149. The affidavit for probable cause indicates [Spray] was intoxicated.
3. Contact Probation within 72 Hours of Incarceration; . . . [Spray] notified this officer of the [April 9] arrest via e-mail on April 22, 2019.
4. Not to Purchase, Consume or Possess Any Alcoholic Beverage; to wit: On or about June 14, 2019, [Spray] tested positive for alcohol on a urine drug screen conducted at the Johnson County Adult Probation Department.
5. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about June 14, 2019, [Spray] was charged in Jackson County, Indiana on cause 36D01-1906-CM-000659 with Ct. I: Criminal Trespass, Class A Misdemeanor.
6. Refrain from Violation of any Federal, State, and Local Law; to wit: On or about June 14, 2019, [Spray] was charged in Jackson County, Indiana, on cause 36D01-1906-CM-000660 with [seven counts of] Unlawful Use of 911 Service, [all] Class A Misdemeanor[s].
Id. at 36.
[4] A revocation hearing was held on August 7, 2019, during which Spray testified
that, aside from her arrests, she was compliant with the terms of her probation:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 3 of 7 I showed up at every appointment, every random drug screen I showed up, I never missed a court hearing, I actually voluntarily went to mental health crisis emergency places in Indianapolis. I got evaluated, they diagnosed me with multiple disorders, mental health issues. And I was going to follow up with them but then I got arrested here.
Transcript, Volume 2 at 10. With respect to the Jackson County charges, Spray
testified “[t]here’s an alleged child abuse, and my children are in . . . their
father’s care . . . he’s abused them in the past, he’s been charged with child
abuse in the past. . . . And the charges are related to that.” Id. at 11. The trial
court found that Spray violated the terms of her probation, revoked her
probation, and ordered that she serve her entire previously suspended sentence
(288 days) at the DOC. Spray now appeals.
Discussion and Decision I. Standard of Review Probation is a matter of grace and a conditional liberty which is a favor, not a right. The trial court determines the conditions of probation and may revoke probation if those conditions are violated. The decision to revoke probation is within the sound discretion of the trial court. And its decision is reviewed on appeal for abuse of that discretion. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Further, on appeal “we consider only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of the witnesses. . . .”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 4 of 7 Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012) (citations omitted).
And we also review a trial court’s sentencing decisions for probation violations
for an abuse of discretion. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.
2017).
II. Sanction for Probation Violation [5] As our supreme court has explained, the revocation of an individual’s probation
is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). “First,
the court must make a factual determination that a violation of a condition of
probation actually occurred. If a violation is proven, then the trial court must
determine if the violation warrants revocation of the probation.” Id. If the trial
court finds that a violation of probation has occurred, it may impose one 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.
Ind. Code § 35-38-2-3(h).
[6] Spray does not dispute that she violated the terms of her probation. Her sole
argument is that trial court abused its discretion in imposing the maximum
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 5 of 7 sanction because the trial court “failed to look at her performance on probation
as a whole.” Brief of Appellant at 9. Specifically, Spray argues that because
she was compliant with other terms of her probation – mental health treatment,
drug screens, probation appointments, and probation fees – the trial court
should have imposed a lesser sanction. We disagree.
[7] The record reveals that less than seven months into probation, Spray was
charged with domestic battery and resisting law enforcement in Scott County,
Indiana. And even after the first petition to revoke Spray’s probation had been
filed, she continued to commit additional offenses and was charged with
criminal trespass and seven counts of unlawful use of 911 in Jackson County.
The probable cause affidavit filed in the Scott County case indicated Spray was
intoxicated at the time of the offense; Spray also failed a random drug screen
conducted at the probation department in June 2019. Although Spray may
have been compliant with the terms of her probation for some time, her
compliance ceased when she was charged with ten criminal offenses and failed
to comply with additional conditions of her probation, including refraining
from alcohol use, timely notifying her probation officer of her arrest, and
providing documentation of mental health treatment. Although Spray testified
that the Jackson County charges were in response to her children’s father
allegedly abusing them, the trial court is the sole judge of credibility; we must
view the evidence most favorable to the trial court’s judgment and cannot
reweigh the evidence. Ripps, 968 N.E.2d at 326.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 6 of 7 [8] Given Spray’s multiple probation violations, which were not merely technical
violations, we conclude the trial court was well within its discretion in ordering
Spray to serve her entire previously suspended sentence. See Sanders v. State,
825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005) (holding that the trial court did
not abuse its discretion in ordering the defendant to serve her previously
suspended five-year sentence upon revocation of defendant’s probation for, in
part, committing new crimes while on probation), trans. denied; see also Abernathy
v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006) (noting that the conditions
of probation “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”).
Conclusion [9] The trial court did not abuse its discretion in revoking Spray’s probation and
ordering her to serve her entire previously suspended sentence in the DOC.
Accordingly, the judgment of the trial court is affirmed.
[10] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020 Page 7 of 7