MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 23 2017, 8:52 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent N. Simcox, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
52A02-1702-CR-280
v. Appeal from the Miami Circuit
Court
State of Indiana, The Honorable Timothy P. Spahr,
Appellee-Plaintiff. Judge
Trial Court Cause No.
52C01-1405-FB-21
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 1 of 4
Statement of the Case
[1] Brent N. Simcox appeals the trial court’s revocation of his probation. Simcox
raises a single issue for our review, namely, whether the trial court abused its
discretion when it revoked Simcox’s probation after Simcox failed a drug test.
We affirm.
Facts and Procedural History
[2] In December of 2014, Simcox pleaded guilty to burglary, as a Class B felony.
The trial court initially sentenced Simcox to eight years with two years
suspended to probation. However, after Simcox successfully completed a
purposeful incarceration program while with the Department of Correction, the
court agreed to modify Simcox’s sentence such that the remainder of his
executed time could be spent on work release and, later, home detention.
[3] About one month after his sentence was modified to home detention, Simcox
failed a drug test and tested positive for methamphetamine and buprenorphine.
Thereafter, the State filed its notice of probation violation and petition to revoke
Simcox’s placement. At an ensuing hearing, Simcox admitted to the alleged
violations. The court then revoked Simcox’s placement and ordered him to
serve one year and 300 days of his previously suspended sentence. This appeal
ensued.
Discussion and Decision
[4] Simcox appeals the trial court’s revocation of his probation. As the Indiana
Supreme Court has made clear:
Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 2 of 4
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “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.”). A probation hearing is civil in nature, and
the State must prove an alleged probation violation by a
preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
sufficiency of evidence is at issue, we consider only the evidence
most favorable to the judgment—without regard to weight or
credibility—and will affirm if “there is substantial evidence of
probative value to support the trial court’s conclusion that a
probationer has violated any condition of probation.” Braxton,
651 N.E.2d at 270.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[5] According to Simcox, the trial court abused its discretion when it relied on one
failed drug test to revoke his probation. In particular, Simcox asserts that he
had a severe substance abuse addiction that began when he was a
young teen. He also struggled with both depression and anxiety.
He successfully completed the purposeful incarceration program
and had no conduct violations while in the D.O.C. Upon release
to community corrections, he obtained housing and stable
employment; he took all the steps necessary to have his driving
privileges reinstated; and he began paying down his child support
arrearage while attempting to rebuild a relationship with his
children.
Appellant’s Br. at 8-9.
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[6] Simcox’s argument on appeal is merely a request for this court to reweigh the
evidence, which we will not do. The trial court emphasized in its decision how
quickly Simcox had committed these violations upon being placed on home
detention and Simcox’s history of three prior “unsuccessful terminations of
probation” in other matters. Tr. Vol. II at 34. Moreover, Simcox’s
characterization of his failed drug test as “a single” violation, id. at 4, is not
correct; he failed one drug test, but he failed it for two substances. In sum, we
reject Simcox’s request to reweigh the evidence and hold that the trial court’s
judgment is supported by sufficient evidence.
[7] Affirmed.
Mathias, J., and Altice, J., concur.
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