Michael Burgess v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 18, 2018
• Docket: 18A-CR-208
• 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 Jul 18 2018, 10:07 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Burgess, July 18, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-208 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Kit C. Dean Crane, Judge. Trial Court Cause No. 33C02-1402-FA-4

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 1 of 5 [1] Michael Burgess (“Burgess”) appeals his probation revocation, contending that

the trial court abused its discretion when, after Burgess failed two drug screens

and failed to comply with substance abuse treatment, it sentenced him to the

Indiana Department of Correction (“DOC”) for the remainder of his

previously-suspended sentence.

[2] We affirm.

Facts and Procedural History [3] On March 26, 2013, Burgess pleaded guilty to dealing in a schedule II-

controlled substance, a Class B felony. He was sentenced to eighteen years in

the DOC with four years suspended. Appellant’s App. Vol. 2 at 24-25. Just over

a year after he started serving his sentence, Burgess filed a motion to modify his

sentence, and on January 26, 2016, the trial court agreed to suspend Burgess’s

remaining sentence to probation. Id. at 8, 9, 44. On June 29, 2017 and

September 6, 2017, the probation department filed petitions to revoke Burgess’s

probation because he tested positive for marijuana. Id. at 47-54. At the

dispositional hearing, the State presented testimony of Kevin Moore

(“Moore”), Burgess’s probation officer. Tr. Vol. II at 24, 27. Moore testified

that his first appointment with Burgess was on February 17, 2016, and

Since that time, I repeatedly tried to get the defendant to comply with substance abuse treatment at Meridian Services. In all honesty, I probably gave him longer than I should have before the violation was filed. I continued to advise him that if he didn’t comply, a violation would be filed. Not only did he not comply with Meridian Services, he tested positive on two drug screens.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 2 of 5 Probation can only do so much, and we can’t do it for him. After a certain point, it’s – it’s clear that -- that the defendant is not a good candidate for probation, simply for the fact that he refused, repeatedly, to comply with the terms and conditions that were asked of him.

Id. at 28.

[4] Meridian Services, the center where Burgess was receiving treatment,

indicated that Burgess was “[n]on-compliant (Risk for relapse is predicted):

Inconsistent attendance in treatment, and not working in [sic] recovery.”

Appellant’s App. Vol. 2 at 51. Burgess admitted to the violations of the conditions

of his probation, and the trial court sentenced him to DOC for the remainder of

his previously suspended sentence. Tr. Vol. II at 43. Burgess now appeals.

Discussion and Decision [5] Burgess argues that the trial court abused its discretion when it ordered him to

serve the remainder of his previously-suspended eighteen-year sentence.

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

a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.

Ct. App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “The

trial court determines the conditions of probation and may revoke probation if

the conditions are violated.” Id.; see also Ind. Code § 35-38-2-3(a). “Once a trial

court has exercised its grace by ordering probation rather than incarceration,

the judge should have considerable leeway in deciding how to proceed.”

Prewitt, 878 N.E.2d at 188. “If this discretion were not afforded to trial courts

Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 3 of 5 and sentences were scrutinized too severely on appeal, trial judges might be less

inclined to order probation to future defendants.” Id. Accordingly, we review a

trial court’s probation violation determination for an abuse of discretion.

Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion

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

circumstances or when the trial court misinterprets the law.” Jackson, 6 N.E.3d

at 1042.

[6] Probation revocation is a two-step process. Id. “First, the trial court must make

a factual determination that a violation of a condition of probation actually

occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).

“Second, if a violation is found, then the trial court must determine the

appropriate sanctions for the violation.” Id. If a defendant is found to have

violated probation, a trial court may (1) continue the defendant on probation;

(2) extend the probationary period for not more than one year beyond the

original period; or (3) order all or part of a previously-suspended sentence to be

executed. Ind. Code § 35-38-2-3(g).

[7] Under the terms of his probation, Burgess was not to purchase, possess, or

consume any alcoholic beverage, intoxicating liquor, marijuana, drug, or

controlled substance of any kind, unless legally prescribed to him. Tr. Vol. II at

5. On August 24, 2017, a probation violation hearing was held regarding a

positive drug screen that Burgess submitted to the Henry County Probation

Department on June 14, 2017. The drug screen indicated that Burgess had

used marijuana. The trial court ordered Burgess to submit to a random drug

Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 4 of 5 screen following the hearing, and Burgess admitted that he would likely fail the

drug screen because he was “stressing.” Id. at 10. The drug screen collected

was positive for marijuana.

[8] Burgess was required to obtain a substance abuse evaluation and follow any

recommended treatment as a term of his probation. Id. at 19. He admitted that

he stopped attending Meridian Services because he did not have health

insurance and stated that he started attending Anchor Behavioral Counseling.

Id. at 20. He did not complete his treatment at either agency. Id. at 21.

Because Burgess failed to comply with the terms of his probation, failed to

refrain from the use of illegal drugs, and failed to comply with substance abuse

treatment, the trial court revoked Burgess’s suspended sentence. The trial

court’s decision ordering Burgess to serve the remainder of his sentence at the

Indiana Department of Correction was not clearly against the logic and effect of

the facts and circumstance before it, and the trial court did not abuse its

discretion in revoking Burgess’s probation.

[9] Affirmed.

[10] Baker, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 5 of 5