Megan N. Kinsel v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 13, 2015
• Docket: 84A04-1408-CR-406
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of Jan 13 2015, 10:29 am res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Special Asst. to the State Public Defender Attorney General of Indiana Wieneke Law Office, LLC Plainfield, Indiana CHRISTINA D. PACE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MEGAN N. KINSEL, ) ) Appellant-Defendant, ) ) vs. ) No. 84A04-1408-CR-406 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Michael R. Rader, Judge Cause No. 84D05-1301-FC-91 Cause No. 84D05-1302-FD-379

January 13, 2015

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge Case Summary and Issue

Megan Kinsel appeals the trial court’s order revoking her probation, asking

whether the trial court abused its discretion by revoking her probation and ordering her to

serve the entirety of her two suspended sentences in prison. Concluding the sanction

imposed by the trial court was not an abuse of discretion, we affirm.

Facts and Procedural History

The trial court’s order in this case resulted in the revocation of Kinsel’s probation

in two causes.

On January 10, 2013, Kinsel was charged with escape, a Class C felony, under

cause number 84D05-1301-FC-91 (“FC-91”). That charge was later amended to a charge

of failure to return to lawful detention, a Class D felony.

On February 8, 2013, Kinsel was charged with possession of methamphetamine, a

Class D felony, under cause number 84D05-1302-FD-379 (“FD-379”).

On March 22, 2013, Kinsel pled guilty as charged under both FC-91 and FD-379.

Under FC-91, Kinsel was sentenced to three years executed. Under FD-379, she received

a three-year sentence, with two years suspended to probation. Kinsel’s sentences for the

two causes were ordered to be served consecutively.

In January 2014, Kinsel requested a modification of her sentence, which the trial

court eventually granted on April 2, 2014. Kinsel was released from the Indiana

Department of Correction and ordered to serve 617 days of formal probation under

FC-91, consecutive to the two years of probation previously imposed under FD-379.

Kinsel was ordered to report to Freebirds Solution Center (“Freebirds”) and to remain

2 there for 180 days, and her conditions of probation included a requirement that she would

not “possess or use any controlled substance, except as prescribed by a licensed medical

practitioner.” Appellant’s Appendix at 75.

On May 27, 2014, Kinsel was discharged from Freebirds after testing positive for

methamphetamine. She was allowed to return to the program two weeks later on June 9,

but she was discharged once again on July 3 after arguing with Freebirds staff members,

leaving, and failing to return. As a result of Kinsel’s positive drug test and failure to

successfully complete her time with Freebirds, the State filed a notice of probation

violation. An evidentiary hearing was held on July 31, 2014. The trial court determined

that Kinsel violated her probation, revoked her probation, and ordered her to serve the

entirety of her previously suspended sentences. Kinsel now appeals.

Discussion and Decision

I. Standard of Review

“Probation is a matter of grace left to trial court discretion, not a right to which a

criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)

(citation omitted). It is within the trial court’s discretion to determine probation

conditions and to revoke probation upon violation of a condition. Id. Thus, an appeal

from a trial court’s finding of a violation and the resulting sanction are reviewed only for

an abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly against

the logic and effect of the facts and circumstances or if it is contrary to law. Id.

3 II. Violations and Revocation of Probation

Probation revocation is a two-step process. Id. First, the trial court determines

whether a probation violation actually occurred. Id. Second, if a violation is found, the

trial court then determines what sanctions, if any, are appropriate. Id. In this appeal,

Kinsel does not argue that the trial court erred by finding that a probation violation

occurred; rather, she only contends that the sanction was an abuse of discretion.

Among the sanctions at the trial court’s disposal is the power to “[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). However, Kinsel argues that the trial court should not have

exercised that power and instead should have placed Kinsel in a community corrections

program. She claims that her issues with drug addiction are a mitigating circumstance

and that she should be given another opportunity to serve the remainder of her sentence

outside of prison. Kinsel also points to her successful completion of a drug-related

program while incarcerated and the fact that she obtained employment when her sentence

was modified.

While we believe it may have been reasonable to place Kinsel in community

corrections, we cannot say the trial court’s decision in this case was an abuse of

discretion. Kinsel committed multiple violations of her probation conditions, and this

court has previously said that “[t]he violation of a single condition of probation is

sufficient to revoke probation.” Snowberger v. State, 938 N.E.2d 294, 296 (Ind. Ct. App.

2010). Moreover, one of Kinsel’s violations—using methamphetamine—was the same

conduct that landed her a conviction under FD-379 in the first place. The trial court is

4 afforded a great deal of discretion in probation matters, and we do not believe the trial

court abused its discretion here.

Conclusion

Concluding the trial court’s decision to revoke Kinsel’s probation and order

execution of the remainder of her sentences was not an abuse of discretion, we affirm.

Affirmed.

BAILEY, J., and BROWN, J., concur.