Michael Pollack v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 24, 2013
• Docket: 84A04-1207-CR-374
• Status: Unpublished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 res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER Wilkinson, Goeller, Modesitt, Wilkinson & Attorney General of Indiana Drummy, LLP Terre Haute, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

Apr 24 2013, 9:33 am IN THE COURT OF APPEALS OF INDIANA

MICHAEL POLLACK, ) ) Appellant-Defendant, ) ) vs. ) No. 84A04-1207-CR-374 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable David R. Bolk, Judge Cause No. 84D03-1109-FD-2947

April 24, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Michael Pollack’s probation was revoked, and he appeals the order that he serve 464

previously-suspended days. We affirm.

FACTS AND PROCEDURAL HISTORY

On September 14, 2011, Pollack was charged with Class D felony intimidation1 and

Class B misdemeanor public intoxication.2 On April 16, 2012, Pollack accepted a plea

agreement for both charges. The court sentenced Pollack to two years for intimidation and

180 days for public intoxication to be served consecutively. The court gave Pollack credit for

time served, and suspended the remainder of the sentence to probation. Pollack was ordered

to serve the probationary period at Freebirds Solution Center, Inc., which prohibited program

participants from having alcohol in their bloodstream while in the facility. On May 23, 2012,

Pollack tested positive for alcohol at Freebirds, and he threatened and assaulted Freebirds

staff. Based thereon, the trial court revoked Pollack’s probation and ordered him to serve the

previously-suspended portion of the sentence.

DISCUSSION AND DECISION

Probation is a conditional liberty that trial courts have discretion to provide. Lightcap

v. State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007). Trial courts set the conditions of

probation and may revoke probation if a probationer violates a condition. Cooper v. State,

917 N.E.2d 667, 671 (Ind. 2009). Thus, whether to revoke probation in any particular case

resides within the discretion of the trial court, and we review its decision for abuse of

1 Ind. Code § 35-45-2-1. 2 Ind. Code § 7.1-5-1-3.

2 discretion. Id. An abuse of discretion occurs only where the decision is against the logic and

effect of the facts and circumstances before the court. Pugh v. State, 804 N.E.2d 202, 203

(Ind. Ct. App. 2004). A revocation hearing is a civil proceeding, which means the State’s

burden is to prove the violation only by a preponderance of the evidence. Id. If substantial

evidence of probative value supports the finding of a violation, then we affirm. Id.

Pollack argues the trial court abused its discretion in revoking his probation and

ordering him to serve his suspended sentence in the Department of Correction because he

became an alcoholic at an early age and, therefore, should be given another chance to change

his habits via continued probation and placement in a residential treatment facility. Pollack

cites no authority that suggests probation revocation in this circumstance is an abuse of

discretion.

Probation itself was Pollack’s second chance, and Freebirds is a facility designed to

help recovering alcoholics. Pollack violated his probation by testing positive for alcohol,

failing to complete the Freebirds program, and physically and verbally attacking Freebirds

staff. This is substantial evidence of probative value supporting the finding of a violation

and justifying the court’s decision to revoke Pollack’s suspended sentence. See Mogg v.

State, 918 N.E.2d 750 (Ind. Ct. App. 2009) (preponderance of evidence that Mogg consumed

alcohol was sufficient for revocation of probation). Further, the trial court was within its

discretion when it ordered Pollack to serve his previously-suspended sentence. See Ind. Code

§ 35-38-2-3(h) (“If the court finds that the person has violated a condition [of probation] . . .

the court may . . . [o]rder execution of all or part of the sentence that was suspended at the

3 time of initial sentencing.”).

The trial court did not abuse its discretion when it ordered Pollack to serve his

previously-suspended sentence because he violated the terms of his probation. We

accordingly affirm.

Affirmed.

ROBB, C.J., and PYLE, J., concur.