MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 18 2016, 9:39 am 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 Stacy R. Uliana Gregory F. Zoeller Bargersville, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lewis R. Ross, III, February 18, 2016 Appellant-Defendant, Court of Appeals Case No. 84A01-1508-CR-1261 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael Rader, Appellee-Plaintiff Judge Trial Court Cause Nos. 84D05-1405-FD-1428 84D05-1308-FD-2518
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 1 of 6 Case Summary and Issue [1] Lewis Ross’ home detention and probation was revoked, and the trial court
ordered him to serve the remainder of his sentence in the Indiana Department
of Correction. On appeal, Ross raises the sole issue of whether the trial court
abused its discretion in ordering him to serve the remaining portion of his
sentence in the Department of Correction. Concluding the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History [2] On January 26, 2011, the State charged Ross under cause number 84D05-1101-
FD-341 (“FD-341”) with domestic battery, a Class D felony. On August 22,
2013, the State charged Ross under cause number 84D05-1308-FD-2518 (“FD-
2518”) with possession of chemical reagents or precursors with the intent to
manufacture a controlled substance, a Class D felony. Three months later, the
State charged Ross under cause number 84D05-1405-FD-1428 (“FD-1428”)
with domestic battery, a Class A misdemeanor; possession of paraphernalia, a
Class A infraction; strangulation, a Class D felony; and possession of
methamphetamine, a Class D felony. The State later amended the charging
information under FD-1428 to enhance the domestic battery charge to a Class
D felony.
[3] In September 2014, Ross entered into a plea agreement with the State whereby
he pleaded guilty to the charges under FD-341, FD-2518, and to possession of
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 2 of 6 methamphetamine under FD-1428. As a part of the agreement, the remaining
charges under FD-1428 were dismissed. In aggregate, the trial court sentenced
Ross to a four-year executed sentence to be served on home detention, followed
by two years on probation. Ross was required to pay all fees associated with his
home detention placement. In addition, Ross could not use or possess any
alcoholic beverages or drugs not prescribed by a physician. Finally, Ross was
required to attend all classes, tests, seminars or any other activity assigned by
his field coordinator.
[4] At his initial drug screen on October 2, 2014, Ross tested positive for
methamphetamine. Over the next several months, Ross tested positive for
alcohol consumption six times. On June 18, 2015, Ross again tested positive
for methamphetamine. The following week, Ross failed to report to two
required classes. Ross was also $1,889 in arrears for his home detention fees.
As a result, the State filed a Petition to Revoke Direct Placement in the Home
Detention Program and/or to Revoke Probation.
[5] On July 30, 2015, at a hearing on the State’s petition, Ross admitted to having a
substance abuse problem and claimed he consumed alcohol in an attempt to
“stay off the methamphetamine . . . .” Transcript at 14. In addition, Ross
claimed he used methamphetamine and skipped two classes because he was
depressed. In revoking Ross’ probation and home detention placement, the
trial court acknowledged Ross’ “atrocious” criminal history and “[a] number of
probation violations . . . .” Id. at 25-26. The trial court then ordered he serve
the balance of his aggregate term—approximately four years—in the
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 3 of 6 Department of Correction. The trial court also ordered Ross receive treatment
for his substance abuse while in prison, and stated once Ross completed an
appropriate treatment program, it would consider modifying the sentence. This
appeal ensued.
Discussion and Decision I. Standard of Review [6] Initially, we note the standard of review on appeal from the revocation of direct
placement in home detention mirrors that for revocation of probation. Cox v.
State, 706 N.E.2d 547, 549 (Ind. 1999). “Probation is a matter of grace left to
trial court 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
probation, and may revoke probation if the conditions of probation are violated.
Id.; see also Ind. Code § 35-38-2-3. Proof of a single violation of the conditions
of probation is enough for the trial court to revoke probation. Bussberg v. State,
827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied. A trial court’s sentencing
decision for probation violations is reviewed for an abuse of discretion. Prewitt,
878 N.E.2d at 188. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id.
II. Sanctions on Revocation [7] Ross contends the trial court abused its discretion in ordering him to serve the
remaining four years of his sentence in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 4 of 6 Specifically, Ross argues that considering his criminal history, his addiction to
drugs, and the fact he was successful on home detention for almost two years,
the trial court’s decision went against the logic and effect of the facts and
circumstances. In Indiana,
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.
Ind. Code § 35-38-2-3(h); see also Ind. Code § 35-38-2.6-5.
[8] We are not persuaded the trial court abused its discretion in ordering Ross serve
the remaining portion of his sentence in the Department of Correction for
several reasons. First, despite Ross being fully aware of the terms of his
placement and probation and despite the State giving him multiple
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 18 2016, 9:39 am 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 Stacy R. Uliana Gregory F. Zoeller Bargersville, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lewis R. Ross, III, February 18, 2016 Appellant-Defendant, Court of Appeals Case No. 84A01-1508-CR-1261 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael Rader, Appellee-Plaintiff Judge Trial Court Cause Nos. 84D05-1405-FD-1428 84D05-1308-FD-2518
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 1 of 6 Case Summary and Issue [1] Lewis Ross’ home detention and probation was revoked, and the trial court
ordered him to serve the remainder of his sentence in the Indiana Department
of Correction. On appeal, Ross raises the sole issue of whether the trial court
abused its discretion in ordering him to serve the remaining portion of his
sentence in the Department of Correction. Concluding the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History [2] On January 26, 2011, the State charged Ross under cause number 84D05-1101-
FD-341 (“FD-341”) with domestic battery, a Class D felony. On August 22,
2013, the State charged Ross under cause number 84D05-1308-FD-2518 (“FD-
2518”) with possession of chemical reagents or precursors with the intent to
manufacture a controlled substance, a Class D felony. Three months later, the
State charged Ross under cause number 84D05-1405-FD-1428 (“FD-1428”)
with domestic battery, a Class A misdemeanor; possession of paraphernalia, a
Class A infraction; strangulation, a Class D felony; and possession of
methamphetamine, a Class D felony. The State later amended the charging
information under FD-1428 to enhance the domestic battery charge to a Class
D felony.
[3] In September 2014, Ross entered into a plea agreement with the State whereby
he pleaded guilty to the charges under FD-341, FD-2518, and to possession of
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 2 of 6 methamphetamine under FD-1428. As a part of the agreement, the remaining
charges under FD-1428 were dismissed. In aggregate, the trial court sentenced
Ross to a four-year executed sentence to be served on home detention, followed
by two years on probation. Ross was required to pay all fees associated with his
home detention placement. In addition, Ross could not use or possess any
alcoholic beverages or drugs not prescribed by a physician. Finally, Ross was
required to attend all classes, tests, seminars or any other activity assigned by
his field coordinator.
[4] At his initial drug screen on October 2, 2014, Ross tested positive for
methamphetamine. Over the next several months, Ross tested positive for
alcohol consumption six times. On June 18, 2015, Ross again tested positive
for methamphetamine. The following week, Ross failed to report to two
required classes. Ross was also $1,889 in arrears for his home detention fees.
As a result, the State filed a Petition to Revoke Direct Placement in the Home
Detention Program and/or to Revoke Probation.
[5] On July 30, 2015, at a hearing on the State’s petition, Ross admitted to having a
substance abuse problem and claimed he consumed alcohol in an attempt to
“stay off the methamphetamine . . . .” Transcript at 14. In addition, Ross
claimed he used methamphetamine and skipped two classes because he was
depressed. In revoking Ross’ probation and home detention placement, the
trial court acknowledged Ross’ “atrocious” criminal history and “[a] number of
probation violations . . . .” Id. at 25-26. The trial court then ordered he serve
the balance of his aggregate term—approximately four years—in the
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 3 of 6 Department of Correction. The trial court also ordered Ross receive treatment
for his substance abuse while in prison, and stated once Ross completed an
appropriate treatment program, it would consider modifying the sentence. This
appeal ensued.
Discussion and Decision I. Standard of Review [6] Initially, we note the standard of review on appeal from the revocation of direct
placement in home detention mirrors that for revocation of probation. Cox v.
State, 706 N.E.2d 547, 549 (Ind. 1999). “Probation is a matter of grace left to
trial court 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
probation, and may revoke probation if the conditions of probation are violated.
Id.; see also Ind. Code § 35-38-2-3. Proof of a single violation of the conditions
of probation is enough for the trial court to revoke probation. Bussberg v. State,
827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied. A trial court’s sentencing
decision for probation violations is reviewed for an abuse of discretion. Prewitt,
878 N.E.2d at 188. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id.
II. Sanctions on Revocation [7] Ross contends the trial court abused its discretion in ordering him to serve the
remaining four years of his sentence in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 4 of 6 Specifically, Ross argues that considering his criminal history, his addiction to
drugs, and the fact he was successful on home detention for almost two years,
the trial court’s decision went against the logic and effect of the facts and
circumstances. In Indiana,
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.
Ind. Code § 35-38-2-3(h); see also Ind. Code § 35-38-2.6-5.
[8] We are not persuaded the trial court abused its discretion in ordering Ross serve
the remaining portion of his sentence in the Department of Correction for
several reasons. First, despite Ross being fully aware of the terms of his
placement and probation and despite the State giving him multiple
opportunities to clean up his act, he continued to use alcohol and
methamphetamine; it is evident Ross failed to take advantage of the State’s
generosity. Second, Ross’ criminal history is lengthy, and he has a history of
violating probation. Finally, we are not persuaded Ross can be rehabilitated in
a home detention setting. The record indicates he fought the urge to use
methamphetamine with alcohol in direct violation of the terms of his home
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 5 of 6 detention. Further, he opted to use methamphetamine when he was feeling
depressed, which is also in direct violation of the terms of his home detention.
It seems when there are problems in life, Ross consistently turns to substance
abuse. As the trial court stated, Ross can get the help he needs in prison by
completing a treatment program, and upon completion, the trial court will
consider modifying his sentence. We conclude the evidence presented at the
evidentiary hearing provided the court with an ample basis for making its
decision. Accordingly, we conclude the trial court did not abuse its discretion.
Conclusion [9] The trial court did not abuse its discretion in ordering Ross serve the remainder
of his sentence in the Department of Correction. The judgment of the trial
court is affirmed.
[10] Affirmed.
Barnes, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1261 | February 18, 2016 Page 6 of 6