Rose Mary Boling v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2018
• Docket: 18A-CR-652
• 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 29 2018, 8:44 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 James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rose Mary Boling, June 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-652 v. Appeal from the Bartholomew Superior Court I State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1704-F6-2355

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-652 | June 29, 2018 Page 1 of 5 Statement of the Case [1] Rose Mary Boling appeals her sentence following the trial court’s revocation of

her probation. Boling presents a single issue for our review, namely, whether

the trial court abused its discretion when it ordered her to serve the balance of

her sentence in the Bartholomew County Jail.

[2] We affirm.

Facts and Procedural History [3] In October 2017, Boling pleaded guilty to unlawful possession of a syringe, as a

Level 6 felony. In exchange for her plea, the State dismissed one count of

possession of paraphernalia, as a Class C misdemeanor. The trial court

accepted Boling’s guilty plea and sentenced her to an aggregate term of one and

one-half years suspended to probation. As a condition of her probation, the

court ordered Boling in relevant part to notify the probation department of any

changes in her address within twenty-four hours and to report to the probation

officer at reasonable times “as directed.” Appellant’s App. Vol. II at 32. The

trial court also ordered Boling not to use or possess alcohol.

[4] On November 22, Boling contacted her probation officer and stated that she

would not be able to attend a previously-scheduled appointment because she

was ill. After Boling did not make an effort to reschedule the appointment, the

probation officer was unable to contact her about rescheduling because she did

not have a phone number or address for Boling. Accordingly, on January 4,

2018, the State filed a petition to revoke Boling’s probation. In that petition,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-652 | June 29, 2018 Page 2 of 5 the State alleged that Boling had violated the terms of her probation when she

failed to report to the appointment with her probation officer on November 22,

2017, and when she failed to provide her probation officer with an address. At

the time the State filed the petition, Boling’s whereabouts were unknown. The

trial court issued a warrant for her arrest, and Boling was later arrested on

February 3, 2018.

[5] On March 7, the trial court held a hearing on the State’s petition to revoke

Boling’s probation. At the hearing, Boling admitted to the alleged violations.

The court then revoked Boling’s probation and ordered her to serve the balance

of her one and one-half year sentence in the Bartholomew County Jail. This

appeal ensued.

Discussion and Decision [6] Boling appeals the trial court’s order that she serve the balance of her previously

suspended sentence. Probation is a matter of grace left to trial court discretion.

Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a

defendant has violated a condition of 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)(3) (2017). We review the trial court’s

sentencing decision following the revocation of probation for an abuse of

discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of

discretion occurs “only where the trial court’s decision is clearly against the

logic and effect of the facts and circumstances” before the court. Robinson v.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-652 | June 29, 2018 Page 3 of 5 State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

trial court’s judgment to determine if there was substantial evidence of

probative value to support the court’s ruling. Id.

[7] Here, Boling asserts that the trial court abused its discretion when it ordered her

to serve the balance of her previously suspended sentence because she testified

that she had missed the appointment on November 22, 2017, because she was

ill and that she had failed to provide an address because she was moving from

house to house. Boling also testified that she now had a place to live and is a

self-employed painter. Boling’s contentions on appeal amount to a request that

we reweigh the evidence, which we cannot do.

[8] The trial court’s judgment is supported by substantial evidence and was within

the court’s sound discretion. The trial court originally suspended the entirety of

Boling’s sentence. Then, just over one month into her probation, Boling failed

to appear at an appointment, failed to reschedule the appointment, and failed to

provide her probation officer with an address. And Boling’s probation officer

did not have any contact with Boling or know where Boling was from

November 22, 2017, until February 3, 2018. Further, Boling admitted that she

did not contact her probation officer during that time because she was using

alcohol. Thus, the court’s order that Boling serve the balance of her term is

supported by the record and well within the trial court’s discretion. We affirm

the court’s judgment.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-652 | June 29, 2018 Page 4 of 5 [9] Affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-652 | June 29, 2018 Page 5 of 5