Kasi Ballew v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Nov 27 2013, 5:37 am 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:

MATTHEW J. McGOVERN GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KASI BALLEW, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1303-CR-141 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Maria D. Granger, Judge Cause No. 22D03-1003-FB-622

November 27, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Kasi Ballew appeals the trial court’s revocation of her probation. The sole issue

presented for our review is whether the trial court abused its discretion when it revoked

Ballew’s probation and ordered her to execute four years of her previously suspended

sentence. Finding no abuse of discretion, we affirm.

Facts and Procedural History

On March 12, 2010, the State charged Ballew with class B felony dealing in a

schedule II controlled substance. Ballew pled guilty to that offense, and the trial court

accepted her plea on August 10, 2010. The trial court subsequently imposed the advisory

ten-year sentence with five years suspended to probation. Ballew appealed her sentence, and

another panel of this Court affirmed that sentence by memorandum decision. See Ballew v.

State, No. 22A04-1008-CR-555 (Ind. Ct. App. June 17, 2011).

On August 16, 2011, the trial court placed Ballew in a community transition program.

Thereafter, on June 25, 2012, the State filed a notice of probation violation against Ballew

followed by a petition to revoke probation. The State filed an amended petition to revoke

probation on January 7, 2013, alleging the following ten probation violations: (1) failure to

maintain good behavior; (2) violation of a state or federal law due to being charged with

another crime in cause number 22D03-1206-FD-1261; (3) failure to undergo drug and

alcohol counseling as ordered by the trial court; (4) failure to attend and/or reside in the

halfway house; (5) failure to undergo counseling as ordered by probation; (6) failure to

comply with day reporting; (7) use of alcohol and/or a controlled substance not prescribed by

2 a physician; (8) failure to work faithfully or pursue a course of study; (9) associating with

criminals; (10) failure to pay delinquent probationer fees. Appellant’s App. at 106.

Following an evidentiary hearing held on February 25, 2013, the trial court concluded

that the State established by a preponderance of the evidence that Ballew had violated several

conditions of her probation. Specifically, the court concluded that Ballew used a controlled

substance without a prescription based upon evidence that she failed drug screens and

presented a diluted drug screen to her probation officer. The court also concluded that

Ballew refused to reside at a halfway house as ordered by the court as a condition of her

probation. Ballew failed to undergo drug and alcohol counseling as ordered by both the court

and her probation officer, and she failed to report to the day reporting program, which was a

condition of her pre-hearing release on the petition to revoke probation. Finally, Ballew was

charged with another criminal offense while on probation after she and her boyfriend were

arrested in a house where controlled substances, hypodermic needles, and other drug

paraphernalia were present.

Based upon the evidence presented, the trial court concluded:

Defendant’s actions demonstrate that she will not submit to rehabilitation and accept responsibility for compliance with the supervision and terms of probation ordered by this Court. The defendant’s attitude and actions indicate an unwillingness to submit to the authority of this court and a willful failure to participate in her own rehabilitation, treatment and sobriety without commitment to a penal facility. The defendant’s actions further indicate her unwillingness to appreciate the consequences that result in not following the law. The defendant’s violations of probation are of a nature that requires the majority of the remainder of her probation be revoked. The objectives of justice and protection of the community will not be met if the defendant were to continue probation.

3 Id. at 113. Consequently, the trial court revoked Ballew’s probation and ordered her to

execute four of the five years of her previously suspended sentence. This appeal ensued.

Discussion and Decision

Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134 (Ind.

Ct. App. 2012), trans. denied. First, the trial court must make a factual determination that a

violation of a condition of probation has occurred. Id. Second, the trial court must make a

determination as to whether the violation warrants revocation. Id. It is well settled that

violation of a single condition of probation is sufficient to revoke probation. Wilson v. State,

708 N.E.2d 32, 34 (Ind. Ct. App. 1999). Upon revoking probation, the trial court may

impose one of several statutory sanctions, including ordering the defendant to execute all or

part of the sentence that was suspended at the time of sentencing. See Ind. Code § 35-38-2-

3(h). We review a trial court’s sentencing decisions for probation violations for an abuse of

discretion. Alford, 965 N.E.2d at 124. An abuse of discretion occurs when the decision is

clearly against the logic and effect of the facts and circumstances before the court. Id.

Ballew admits that she violated several conditions of her probation. She challenges

only the trial court’s decision to revoke her probation and order her to execute four years of

her previously suspended sentence. The trial court found that Ballew had violated at least

five of the conditions of her probation. Indeed, Ballew was on probation for a drug-related

offense, and several of her violations involved drugs and/or her refusal to participate in drug

rehabilitation efforts. Her violations are evidence of her apparent determination to proceed

down a self-destructive path. Despite her insistence on appeal that she has since made great

4 efforts to improve her life, the record supports the trial court’s conclusion that incarceration,

rather than the home detention she now urges, is the best option. In short, Ballew’s behavior

indicates that she requires the constant supervision that incarceration provides. Accordingly,

we cannot say that the trial court’s decision to revoke Ballew’s probation and order her to

execute some of her previously suspended sentence is clearly against the logic and effect of

the facts and circumstances before the court. The trial court did not abuse its discretion.

Affirmed.

BARNES, J., and PYLE, J., concur.