Merisha A. Bradtmueller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 5, 2017
• Docket: 02A03-1609-CR-2234
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 05 2017, 6:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana

George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Merisha A. Bradtmueller, May 5, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1609-CR-2234 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D06-1403-FB-62

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CR-2234 | May 5, 2017 Page 1 of 5 [1] Merisha A. Bradtmueller appeals the trial court’s order that she serve eight

years of her suspended sentence following the revocation of her probation. We

affirm.

Facts and Procedural History [2] On March 6, 2015, Bradtmueller pled guilty to Class B felony neglect of a child

resulting in serious bodily injury. The trial court sentenced her to ten years,

suspended the sentence, and ordered four years on probation.

[3] On July 7, 2015, Bradtmueller admitted she violated her probation by failing to

complete the Community Control intake required by the terms of her probation.

The court returned her to probation with the same conditions.

[4] On March 8, 2016, Allen County Community Corrections (“ACCC”) filed a

status report regarding Bradtmueller’s probation. The report indicated she had

complied with certain terms of her probation, but was out of compliance for a

multitude of reasons including failure to look for and obtain employment, non-

payment of fees, missed appointments, a positive drug screen, and termination

from both her substance abuse treatment and the Focusing on Resettlement

program. On March 21, 2016, the trial court noted Bradtmueller “continue[d]

to be out of compliance.” (App. Vol. II at 96.) The trial court went on to order:

“Defendant to remain on probation/community corrections on a Zero

Tolerance basis. Any violation of placement to be reported to the court

immediately.” (Id.)

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CR-2234 | May 5, 2017 Page 2 of 5 [5] On May 16, 2016, ACCC filed a report with the trial court indicating

Bradtmueller did not submit a weekly schedule and did not attend substance

abuse treatment or the Focusing on Resettlement program. Based on those

violations, the trial court ordered Bradtmueller to serve fifteen days in jail.

[6] On August 5, the trial court ordered Bradtmueller be taken into custody and

presented before the court on August 8, 2016, after “Community Corrections

Field Officers have [sic] found [Bradtmueller] in a severely intoxicated

condition believe[sic] to be caused by use of ‘SPICE’.” (Id. at 102.) The same

day, the State filed a petition to revoke Bradtmueller’s probation because she

“[d]id not maintain good behavior. [Bradtmueller] admitted to Allen County

Community Corrections Field Officers, [sic] that she had smoke[sic] Spice prior

to their arrival at her residence on August 5, 2016. (Id. at 103.) On August 25,

2016, Bradtmueller admitted she violated her probation. The trial court ordered

her incarcerated for eight years of her previously suspended ten-year sentence.

The court gave Bradtmueller credit for time she had served in jail and on home

detention, and ordered her to serve two years on probation.

Discussion and Decision [7] Bradtmueller alleges the court abused its discretion by ordering her to serve

eight years of her previously suspended sentence. When reviewing a revocation

decision, we consider only the evidence most favorable to the judgment without

assessing credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126

(Ind. 2005). We affirm unless the trial court abused its discretion. Prewitt v.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CR-2234 | May 5, 2017 Page 3 of 5 State, 878 N.E.2d 184, 188 (Ind. 2007). “An abuse of discretion occurs where

the decision is clearly against the logic and effect of the facts and

circumstances.” Id.

[8] Bradtmueller admitted she violated her probation, and “proof of a single

violation of the conditions of probation is sufficient to support the decision to

revoke probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005),

reh’g denied, trans. denied. On finding a defendant violated 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) (2016).

[9] The trial court ordered Bradtmueller to serve eight of her ten suspended years.

Bradtmueller argues that was an abuse of discretion because she “was able to

successfully complete 386 days on the Community Control program[,] . . .

maintain employment despite her intellectual deficiencies[,] . . . maintain a

household as a single mother of two children[, and] . . . did her best to comply

with the [Department of Child Services].” (Br. of Appellant at 18.) However,

the list of her accomplishments while on probation is overshadowed by her

repeated probation violations for failure to attend and complete treatment,

failure to maintain consistent employment, and positive drug screens. We

cannot say the trial court abused its discretion when, after exhibiting patience

and lenience with Bradtmueller for over one year of probation, it ordered her to

serve eight years executed and two years suspended to probation. See Prewitt,

878 N.E.2d at 188 (trial court did not abuse its discretion when it ordered

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CR-2234 | May 5, 2017 Page 4 of 5 Prewitt to serve a portion of his suspended sentence after Prewitt violated his

probation on multiple occasions).

Conclusion [10] The trial court did not abuse its discretion when it ordered Bradtmueller to

serve eight years executed and two years suspended. Accordingly, we affirm.

[11] Affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CR-2234 | May 5, 2017 Page 5 of 5