Mindy J. Woliung v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2019
• Docket: 19A-CR-358
• 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 Jun 12 2019, 8:56 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew T. Bates Curtis T. Hill, Jr. R. Patrick Magrath Attorney General of Indiana Alcorn Sage Schwartz & Magrath, LLP Samantha M. Sumcad Madison, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mindy J. Woliung, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-358 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Sharp, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1002-FA-4

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 1 of 7 Case Summary [1] Mindy Woliung (“Woliung”) appeals the trial court’s sanction, following a

probation revocation hearing at which Woliung admitted to violating the terms

of her probation. She raises one issue on appeal, namely, whether the trial

court abused its discretion when it ordered her to serve four years of her five-

year suspended sentence.

[2] We affirm.

Facts and Procedural History [3] On February 24, 2010, the State charged Woliung with aiding in dealing

cocaine, as a Class A felony.1 On October 24, 2011, Woliung pled guilty to an

amended charge of possession of cocaine, as a Class C felony.2 The trial court

sentenced Woliung to a period of eight years with five years suspended.

Following a period of home detention, Woliung was placed on probation. Her

terms of probation included requirements that she not commit another criminal

offense, not use alcohol or other non-prescribed controlled substances, and

permit drug testing.

[4] On January 31, 2013, the State filed a petition for a probation violation hearing

on the grounds that Woliung had violated her probation by testing positive for

1 Ind. Code § 35-48-4-1(b) (2010). 2 I.C. § 35-48-4-6(b) (2011).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 2 of 7 methamphetamine in two different drug screens taken on November 1, 2012,

and January 22, 2013. On March 5, 2013, the State filed an amended petition

for a probation violation hearing on the additional grounds that Woliung had

been charged with False Informing, as a Class B misdemeanor.3 On March 15,

the State filed another amended petition alleging Woliung also violated the

terms of her probation by dealing methamphetamine, as a Class A felony,4 and

possessing methamphetamine, as a Class C felony,5 in November of 2012. The

false informing and possession charges were dropped but Woliung was

convicted of the dealing charge. Following an October 20, 2014, fact finding

hearing, the trial court found that Woliung had violated the conditions of her

probation by “having been convicted of a criminal offense” in Marion County,

but it ordered her to continue on probation under the same initial terms and

conditions. App. Vol. II at 132.

[5] On June 4, 2018, the State filed another petition for a probation violation

hearing in which it alleged that, on May 17, 2018, Woliung had tested positive

for methamphetamine, and that she was in arrears in probation and testing fees.

On January 16, 2019, Woliung admitted to the probation violation, and the

trial court granted the State’s petition to revoke Woliung’s probation. The trial

court revoked four years of Woliung’s five-year suspended sentence. In making

3 I.C. § 35-44.1-2-3(d) (2013). 4 I.C. § 35-48-4-1.1(b) (2012). 5 I.C. § 35-48-4-6.1(b) (2012).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 3 of 7 its decision, the trial court found Woliung’s admission to be a mitigating factor,

and it also “consider[ed]” that she was employed and had passed all other

recent drug tests. Tr. at 40. The trial court also made note of Woliung’s past

criminal convictions and the leniency shown to her in past sentencing decisions.

[6] This appeal ensued.

Discussion and Decision [7] Woliung argues that the trial court abused its discretion when it imposed a

sanction for her probation violation. “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); see also Treece v. State, 10 N.E.3d 52, 56

(Ind. Ct. App. 2014), trans. denied. We review probation violation

determinations and sanctions 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.” Id. (citations omitted). “As with other

sufficiency issues, we do not reweigh the evidence or judge the credibility of

witnesses.” Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (citation

and quotation omitted), trans. denied.

[8] A probation revocation proceeding is a two-step process. Heaton, 984 N.E.2d at

616. First, the trial court must determine whether the preponderance of the

evidence showed that a probation violation occurred. Id.; see also I.C. § 35-38-2-

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 4 of 7 3 (requiring that an evidentiary hearing be held on revocation of probation and

providing for confrontation and cross-examination of witnesses by the

probationer). “When a probationer admits to violations of the terms of his

probation, the procedural safeguards of [I.C. § 35-38-2-3] are unnecessary.

Instead, the court can proceed to the second step of the inquiry and determine

whether the violation warrants revocation.” Woods v. State, 892 N.E.2d 637,

640 (Ind. 2008) (citations omitted).

[9] In the second step of the process, the trial court must determine whether the

probation violation warrants revocation of probation or some lesser sanction.

Heaton, 984 N.E.2d at 616 (“[I]f a violation is found, then the trial court must

determine the appropriate sanctions for the violation.”); Patterson v. State, 659

N.E.2d 220, 222-23 (Ind. Ct. App. 1995) (“A court has several dispositional

options in a revocation proceeding.”). Indiana Code Section 35-38-2-3(h)

provides:

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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 5 of 7 (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Our Supreme Court has held that this statute “permits judges to sentence

offenders using any one of or any combination of the enumerated powers.”

Prewitt, 878 N.E.2d at 187. And, while probationers must be given the

opportunity to present mitigating factors, Woods, 892 N.E.2d at 640, the trial

court is not required to consider aggravating and mitigating factors when

deciding whether to revoke probation, Porter v. State, 117 N.E.3d 673, 675 (Ind.

Ct. App. 2018). Moreover, a single violation of a condition of probation is

sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d

752, 755 (Ind. Ct. App. 2015).

[10] Here, Woliung does not dispute that the trial court had authority to sanction

her pursuant to Indiana Code Section 35-38-2-3(h), given that she admitted to

the probation violation. Rather, Woliung seems to contend that the trial court

erred in weighing the mitigating and aggravating circumstances—giving

insufficient weight to her admission to the violation and other alleged good

behavior and too much weight to what she seems to believe were “minor

probation violations.” Appellant’s App. at 10. First, Woliung forgets that the

trial court need not consider mitigating and aggravating factors at all. Porter,

117 N.E.3d at 675. Second, Woliung’s contentions amount to requests that we

reweigh the evidence or judge witness credibility, which we cannot do. Jenkins,

956 N.E.2d at 148. And, third, committing an additional drug-dealing crime

and testing positive for drugs while on probation are not “minor” probation

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 6 of 7 violations. Cf., e.g., Johnson v. State, 62 N.E.3d 1224, 1231 (Ind. Ct. App. 2016)

(holding probation violations of being “out of place” for short periods of time

were minor and, along with defendant’s low-level of intellectual functioning,

did not support a revocation order to serve the entire suspended sentence).

Given that a court may revoke probation for a single probation violation, the

trial court was well within its discretion when it sanctioned Woliung by

ordering her to serve four years of her five-year suspended sentence. Pierce, 44

N.E.3d at 755.

[11] Affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-358 | June 12, 2019 Page 7 of 7