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 Jan 29 2014, 9:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHRYN C. BYROM GREGORY F. ZOELLER
Kendallville, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TALESA HOWELL, )
)
Appellant-Defendant, )
)
vs. ) No. 57A05-1306-CR-314
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE NOBLE CIRCUIT COURT
The Honorable G. David Laur, Judge
Cause Nos. 57C01-1108-FB-034 and 57C01-1306-FD-012 (Formerly 57D01-0904-FD-072)
January 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Talesa Howell appeals her sentence following the revocation of her probation.
She presents a single issue for our review, namely, whether the trial court abused its
discretion when it sentenced her to two one-year consecutive terms.
We affirm.
FACTS AND PROCEDURAL HISTORY
On February 9, 2012, in Cause Number 57C01-1108-FB-034 (“FB-034”), Howell
pleaded guilty to possession of methamphetamine, as a Class D felony, and possession of
marijuana, as a Class A misdemeanor. The trial court sentenced Howell to eighteen
months for the D felony conviction and 180 days for the A misdemeanor conviction, to
be served concurrently, with six months executed and twelve months suspended to
probation.
On February 17, 2012, in Cause Numbers 57D01-0904-FD-72 (“FD-72”) and
57D01-0808-FD-255 (“FD-255”), Howell pleaded guilty to possession of a controlled
substance, as a Class D felony, and conversion, as a Class A misdemeanor. The trial
court sentenced Howell to eighteen months with six months executed and twelve months
suspended to probation for the Class D felony conviction and sixty days for the Class A
misdemeanor conviction, to run consecutively. And the trial court ordered that the
sentence for FB-34 would run consecutive to the sentences in FD-72 and FD-255.
On June 1, the twelve-month suspended portions of Howell’s sentences
commenced. The terms of Howell’s probation agreements included provisions
prohibiting: the possession or use of “any alcohol, narcotic, drug, controlled substance,
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or mood altering substance unless prescribed by a physician or dentist” and Howell’s
association “with any person of bad character or reputation or with any person who is
likely to influence [her] to commit any crime, or be in the presence of any illegal
activity.” Appellant’s App. at 49-50. In addition, Howell was ordered to submit to drug
and alcohol tests.
On May 3, 2013, the State filed two probation violation reports alleging that
Howell had violated the terms of her probation. At the disposition hearing on June 6,
Howell admitted: that she had tested positive for methamphetamine in December 2012;
that she had taken Adderall while on probation; and that she had smoked
methamphetamine with Kevin Jurich on May 1, 2013, who was arrested that same day.
Howell admitted that each of those actions constituted a violation of her probation.
Howell also testified that she was pregnant with Jurich’s child and that her due date was
less than eight weeks away. Thus, Howell was pregnant at the time that she smoked
methamphetamine on May 1. The trial court revoked Howell’s probation in both causes
and ordered her to serve the remaining year of each sentence consecutively, for an
aggregate term of two years. This appeal ensued.
DISCUSSION AND DECISION
Howell’s sole contention on appeal is that the trial court abused its discretion
when it ordered her to serve two years in “a facility with the CLIFF program.”1
Transcript at 49. She does not contest the revocation of her probation, which was based
on her admissions in court. We review a trial court’s sentencing decision following a
1
The State describes the CLIFF program as a rehabilitation program through the Department of
Correction.
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probation revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 957
(Ind. Ct. App. 2005). An abuse of discretion will be found “where the decision is clearly
against the logic and effect of the facts and circumstances.” Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007).
Indiana Code Section 35-38-2-3 provides in relevant part:
(h) 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.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
In support of her contention on appeal, Howell maintains that, other than the
probation violations, she was “compliant” and “led a law-abiding life and obtained
custody back of her daughter.” Appellant’s Brief at 8. Further, Howell points out that
the trial court initially indicated that the sentences would run concurrently until she told
the court that she would not be eligible for the CLIFF program unless her sentence was at
least eighteen months. At that point, the trial court ordered the sentences to run
consecutively. In sum, Howell asserts that the trial court abused its discretion when it did
not give her credit for her long period of complying with probation and when it changed
its mind regarding the sentence in order to place her in the CLIFF program.
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Our review of the trial court’s sentencing statement shows that the court
questioned Howell extensively about her twenty-year history of untreated substance
abuse and concluded that she would benefit from the CLIFF program. And the trial court
concluded that
it seems clear to me that for the protection of your family and for you that
the best alternative would be to have you as far away from drugs as I can
get you to get you cleared up. To get you into the CLIFF Program, or
recommend you be at that facility because I seem to have better success
with people in the CLIFF Program than I do with anything else, but I think
we can accomplish the same thing.
Transcript at 48. The trial court also noted that “the only way” to “assure [him]self that
[Howell’s new] baby isn’t going to be subjected to more problems” was to send Howell
to the Department of Correction and the CLIFF program. Id. at 50. Howell has not
demonstrated that the trial court’s imposition of this sentence is against the logic and
effect of the facts. The trial court did not abuse its discretion when it sentenced Howell
to consecutive one-year terms.
Affirmed.
BAKER, J., and CRONE, J., concur.
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