Regina A. Beard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2019
• Docket: 18A-CR-2400
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 24 2019, 7:48 am regarded as precedent or cited before any 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 Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Regina A. Beard, June 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2400 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Darrell M. Auxier, Appellee-Plaintiff. Special Judge Trial Court Cause No. 69C01-1209-FB-24

Mathias, Judge.

[1] Regina Beard (“Beard”) appeals the Ripley Superior Court’s revocation of her

probation, arguing the trial court abused its discretion when it ordered her to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2400 | June 24, 2019 Page 1 of 5 serve four years of the balance of her previously suspended sentence in the

Department of Correction (“DOC”).

[2] We affirm.

Facts and Procedural History [3] In March of 2014, Beard pleaded guilty to Class B felony conspiracy to

manufacture methamphetamine. She was ordered to serve eleven years in the

DOC with eight years suspended to probation. After serving her executed time,

Beard began probation on November 25, 2015. Less than one year later, the

State filed a petition to revoke her probation after she tested positive for

amphetamine and methamphetamine on October 17, 2016. Appellant’s App. p.

78. Beard again tested positive for amphetamine and methamphetamine in

February 2017. Id. at 86. She admitted she had violated her probation, and the

court revoked one year of her previously suspended eight-year sentence on June

2, 2017. Id. at 91.

[4] Beard was released on probation on September 14, 2017. She agreed to

participate in Moral Reconation Therapy (“MRT”) and signed an agreement

that her probation could be revoked if she missed two MRT sessions without

excuse. Id. at 95. She immediately missed MRT sessions on October 5 and 10,

2017. Beard met with a probation officer on October 17, who informed her that

her probation would likely be revoked due to her two unexplained absences

from her MRT sessions. Tr. p. 7. Beard then failed to attend a third MRT

session that same day and failed to check in with her probation officer for six

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2400 | June 24, 2019 Page 2 of 5 months. Id. An arrest warrant was issued on October 30, 2017. Appellant’s

App. pp. 9, 98.

[5] Beard admitted to violating her probation on August 7, 2018. Tr. p. 4. The trial

court revoked four years of the balance of her previously suspended sentence

and recommended a Therapeutic Community and Purposeful Incarceration. Id.

at 10; Appellant’s App. p. 100 The trial court indicated it would modify Beard’s

sentence if she successfully completed the Purposeful Incarceration program

without conduct violations. Tr. p. 10. Beard now appeals.

Discussion [6] Probation is a matter of grace left to the trial court’s discretion, not a right to

which a criminal defendant is entitled. 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 probationer violates the conditions. Id. Beard admitted

she violated her probation. Therefore, the trial court had the option of imposing

one of the following sanctions: (1) continue Beard on probation, with or

without modifying or enlarging the conditions; (2) extend her probationary

period for not more than one year beyond the original probationary period; or

(3) order execution of all or part of the sentence that was suspended at the time

of initial sentencing. See Ind. Code § 35-38-2-3(h).

[7] A trial court’s sentencing decisions are reviewed according to the abuse of

discretion standard. Prewitt, 878 N.E.2d at 185. An abuse of discretion occurs if

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2400 | June 24, 2019 Page 3 of 5 the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the court. Id. at 188.

[8] Beard argues the trial court abused its discretion when it ordered her to serve

four years of her previously suspended sentence in the DOC. Beard argues in-

home monitoring is sufficient to ensure her attendance at MRT sessions, and

that if incarceration is appropriate, a sentence between one and four years is

more appropriate because missing MRT sessions is a less egregious violation

than the use of drugs or a new criminal offense. Tr. p. 8; Appellant’s Br. at 10.

[9] It is well within the trial court’s discretion to revoke Beard’s probation and

order her to execute a portion of her sentence. See I.C. § 35-38-2-3(h)(3). A

court may revoke probation after a single violation; this is Beard’s second.

Beard tested positive for drug use less than a year into her probation and tested

positive again three months later. Beard then violated her probation by failing

to report to MRT sessions a mere six weeks after she was released from

incarceration after her first probation violation. She also failed to report to her

probation officer for six months because she did not want to “face the music.”

Tr. p. 7. Beard has shown that less restrictive monitoring is insufficient to

ensure her compliance. The court’s decision to revoke four years of the balance

of Beard’s previously suspended sentence is not an unwarranted response to the

violations she committed, especially given the court’s willingness to consider a

modification to her sentence upon completion of the Purposeful Incarceration

program.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2400 | June 24, 2019 Page 4 of 5 Conclusion

[10] For all of these reasons, we conclude that the trial court acted within its

discretion when it revoked Beard’s probation and ordered her to serve four

years of her previously suspended sentence in the DOC.

[11] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2400 | June 24, 2019 Page 5 of 5