Tracy Souviner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2015
• Docket: 29A04-1409-CR-461
• Status: Published

Opinion

MEMORANDUM DECISION May 12 2015, 10:32 am 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 Lawrence D. Newman Gregory F. Zoeller Newman & Newman, P.C. Attorney General of Indiana Noblesville, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tracy Souviner, May 12, 2015

Appellant-Defendant, Court of Appeals Case No. 29A04-1409-CR-461 v. Appeal from the Hamilton County Superior Court; The Honorable Valorie S. Hahn, Judge Pro State of Indiana, Tempore; Appellee-Plaintiff. 29D01-1307-FC-5773

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 1 of 6 [1] Tracy Lynn Souviner appeals the trial court’s order that she return to

incarceration following the revocation of her probation.

[2] We affirm.

Facts and Procedural History [3] In October 2013, Souviner pled guilty to Class C felony forgery.1 The court

imposed a four-year sentence, ordered credit for the time she had already

served, and suspended the remainder of her sentence. The court placed

Souviner on probation for two years. In addition to all standard conditions of

probation Souviner was required to complete a substance abuse evaluation and

comply with any treatment recommended based thereon.

[4] On December 18, 2013, State filed a notice of probation violation alleging

Souviner had violated probation on December 5, 2013, by submitting a urine

sample that tested positive for a cocaine metabolite and by being dishonest with

her probation officer about her use of illegal drugs. In May 2014, Souviner

failed to appear for the fact-finding hearing regarding her alleged probation

violation, so the court issued a warrant for her arrest.

[5] On July 15, the State filed a second notice of probation violation which alleged

that, on February 28, 2014, Souviner again was dishonest with her probation

officer about her use of illegal drugs and submitted a urine sample that tested

1 Ind. Code § 35-43-4-2(b)(1) (2009).

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 2 of 6 positive for a cocaine metabolite and for opiates. In addition, the notice alleged

Souvenir had failed to enroll in intensive outpatient counseling as required

following her substance abuse evaluation and she had admitted to her probation

officer that she consumed “6 or 7 beers” on July 4, 2014. (App. at 39.)

[6] On August 28, 2014, Souviner appeared before the court and admitted the

alleged violations of probation. On September 11, 2014, the court found, based

on Souviner’s stipulation, that she is a “chemically addicted offender.” (Id. at 46

(emphasis in original).) The court revoked probation, ordered Souviner

incarcerated in the Department of Correction’s Purposeful Incarceration

program, and noted it would “consider a sentence modification should the

Defendant successfully complete an Indiana Department of Correction

Therapeutic Community.” (Id. (emphases in original).)

Discussion and Decision [7] As our Indiana Supreme Court explained:

Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 3 of 6 Accordingly, we review the sanction imposed for a probation violation only for

an abuse of discretion, which occurs “where the decision is clearly against the

logic and effect of the facts and circumstances.” Id.

[8] Souviner admitted violating probation, and “proof of a single violation of the

conditions of probation is sufficient to support the decision to revoke

probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans.

denied. After finding a defendant violated probation, the trial court may

continue the person on probation, extend the probation, or order executed all or

part of a sentence that was suspended at initial sentencing. Alford v. State, 965

N.E.2d 133, 135 (Ind. Ct. App. 2012), trans. denied.

[9] Souviner argues the court abused its discretion in ordering incarceration

because she “had been approved for placement in the Hamilton County

Community Corrections work release and electronic monitoring programs, but

was not given the opportunity to complete that programming.” (Br. of

Appellant at 10.) She alleges the court denied her the opportunity to “serve a

portion of her sentence through community corrections only due to the fact that

she was pregnant.” (Id. at 12.) In support of that allegation, Souviner notes, at

the disposition hearing, the court said she was inappropriate for work release

due to her “condition.” (Id., citing Tr. at 25.)

[10] What the court said was:

The Court has reviewed the file and after hearing the arguments of the State and reviewing the evidence that has been submitted, the Court is going to find that at this time the Defendant’s Probation should be

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 4 of 6 revoked and that the Defendant should be ordered to serve the remainder of the balance of her term at the Indiana Department of Correction under the Purposeful Incarceration in order that, Ma’am, you may be able to get the help that you are going to need. I feel that Electronic Home Monitoring is not going to be a good option being that you have not participated in any counseling or drug treatment while you were on Probation. You did not . . . make your appointments for Probation. I think everyone agrees that Work Release is not a viable option given your condition at this time. The Court will include the language in the Court Order that you are to be in-house in the Purposeful Incarceration and that you will be eligible for a modification at the end of successfully completing the program. (Tr. at 24-25.)

[11] In light of the discussion the court was having regarding Souviner’s need for

counseling and the Purposeful Incarceration program, it seems more likely the

“condition” to which the court was referring was Souviner’s admitted status as

a “chemically addicted offender.” (App. at 46 (emphasis in original).) This

inference is also supported by the court’s statement, and inclusion in its

revocation order, that sentence modification could be requested when Souviner

successfully completed a therapeutic community while incarcerated. In light of

Souviner’s multiple probation violations and her unwillingness to complete

treatment while on probation, the court was well within its discretion to order

her to be incarcerated while completing a drug treatment program. See Prewitt,

878 N.E.2d at 188 (finding no abuse of discretion in court’s order for defendant

to be incarcerated and receive treatment, given probation violations, criminal

history, and unwillingness to complete halfway house program). Accordingly,

we affirm.

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 5 of 6 [12] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-461 | May 12, 2015 Page 6 of 6