MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Jul 27 2015, 6:38 am
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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Powers, July 27, 2015
Appellant-Defendant, Court of Appeals Case No.
69A04-1502-CR-72
v. Appeal from the
Ripley Superior Court
State of Indiana, The Honorable Jeffrey L. Sharp,
Judge
Appellee-Plaintiff.
Cause No. 69D01-1204-FD-44
Kirsch, Judge.
[1] Following the revocation of his probation, Kenneth Powers appeals and raises
the following restated issue: whether the trial court abused its discretion when,
after Powers admitted to violating his probation, the court revoked Powers’s
probation and imposed a portion of Powers’s previously-suspended sentence.
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[2] We affirm.
Facts and Procedural History
[3] In April 2012, the State charged Powers with Class D felony dealing in a
substance represented to be a controlled substance and Class D felony
possession or use of a legend drug or precursor. Several months later, Powers
pleaded guilty to both counts, as charged, and was sentenced to three years of
imprisonment, with credit for 202 days, and two years suspended to probation.
In December 2014, the State filed a petition of probation violation.
[4] At the January 21, 2015 hearing, Powers admitted that he had been drinking
alcohol, failed a drug screen that showed he had consumed marijuana, and
failed to attend approximately eighteen court-ordered Alcoholics/Narcotics
Anonymous meetings. He also admitted that he was in arrears on payment of
probation-related fees and that, on January 15, 2015, he had refused to submit
to a drug screen and became verbally combative with his probation officer. The
State presented argument regarding sentencing that, on more than one
occasion, when Powers was to undergo a random drug screen, Powers told the
officer that he wanted his sentence to be revoked as he did not want to be on
probation. Tr. at 17. The State also reviewed with the trial court Powers’s
juvenile and adult convictions, consisting of misdemeanors up to Class C
felonies. The trial court revoked 670 of the 730 suspended days of incarceration
and ordered Powers to serve that term in the Department of Correction. He
now appeals.
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Discussion and Decision
[5] When reviewing an appeal from the revocation of probation, we consider only
the evidence most favorable to the judgment, and we will not reweigh the
evidence or judge the credibility of the witnesses. Cox v. State, 850 N.E.2d 485,
488 (Ind. Ct. App. 2006). Probation is a favor granted by the State, not a right
to which a criminal defendant is entitled. Id.
[6] Probation revocation generally is a two-step process. Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008). Initially, the court must make a factual
determination that a violation of a condition of probation actually has occurred
through an evidentiary hearing that provides certain due process safeguards; if a
violation is proven, then the trial court must determines if the violation
warrants revocation of the probation. Id. When a probationer admits to the
violations, the evidentiary hearing and procedural safeguards are unnecessary,
and the trial court proceeds to the second step of the inquiry and determines
whether the violation warrants revocation of the probation. Id. However, even
if a probationer admits the allegations against him, he or she must be given an
opportunity to offer mitigating evidence suggesting that the violation does not
warrant revocation. Id.
[7] Here, Powers challenges the sentence imposed by the trial court after he
admitted to violating his probation. He claims that the trial court’s imposition
of 670 days was too harsh, suggesting that only one year of the suspended
sentence should be served. We review a trial court’s sentencing decision in
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probation revocation proceedings for an abuse of discretion. Cox, 850 N.E.2d at
489. While a defendant cannot collaterally attack the propriety of an original
sentence in the context of a probation revocation proceeding, he or she is
entitled to challenge the sentence that a trial court imposes after revoking
probation. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011).
[8] Powers asserts that the imposed 670-day sentence was too long and an abuse of
discretion because at the hearing he admitted, “I have a drug problem,” and
thereafter he sent a letter to the trial court expressing his desire to enroll in an
outpatient drug treatment program, thereby illustrating his desire to change. Tr.
at 19. We are unpersuaded that any abuse of discretion occurred. Upon
finding that a probationer has violated a condition of probation, a court may,
among other things, order execution of all or part of the initial sentence that
was suspended. Ind. Code § 35-38-2-3(h). Here, Powers offered nothing to the
trial court beyond the sole statement, “I have a drug problem.” Tr. at 19. In
making its recommendation regarding sentencing, the State argued, and Powers
admitted, that on more than one occasion, Powers was “verbally abusive” with
his probation officer, refused drug screens, and indicated he did not want to be
on probation. Id. at 16-17. The trial court had the authority to order Powers to
serve the previously-suspended two years, 730 days, but it only required Powers
to serve a portion of that sentence.1 Powers has failed to establish that the trial
1
We note that the trial court’s written Order on Probation Violation placed Powers in the Purposeful
Incarceration Program (“Program”) at the Department of Correction. Appellant’s App. at 68. At the
revocation hearing, Powers stated, “I already did that.” Tr. at 20. However, in a letter that Powers sent to
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court abused its discretion when it revoked his probation and ordered him to
serve 670 days of incarceration.
[9] Affirmed.
Najam, J., and Barnes, J., concur.
the trial court following the hearing, Powers expressed a desire to participate in and complete the Program.
Appellant’s App. at 70. Thus, Powers’s participation in the Program is not clear from the record before us.
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