MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 07 2017, 7:05 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
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelsie N. Shewmaker, December 7, 2017
Appellant-Defendant, Court of Appeals Case No.
48A02-1705-CR-973
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff Judge
Trial Court Cause No.
48C06-1203-FB-497
May, Judge.
[1] Kelsie N. Shewmaker appeals the revocation of one year of her eight-year term
of probation. Shewmaker argues the trial court improperly relied on her failure
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to pay restitution and failure to maintain employment, without first finding she
was voluntarily unemployed. Because the trial court’s revocation is supported
by Shewmaker’s use of illegal substances and commission of theft, we affirm.
Facts and Procedural History
[2] On March 12, 2014, Shewmaker began serving her eight-year term of probation
for two counts of burglary and two counts of theft. On August 5, 2014,
Shewmaker violated her probation by failing to pay restitution, failing to pay
probation fees, and failing to obtain a substance abuse evaluation. The court
returned Shewmaker to probation.
[3] On December 11, 2015, Shewmaker again violated her probation by failing to
pay restitution and by testing positive for illicit drugs. The court again returned
Shewmaker to probation.
[4] On February 21, 2017, notice of Shemaker’s probation violation was filed. At
the evidentiary hearing, Shewmaker admitted using illicit drugs, failing to pay
restitution, and failing to maintain employment. The State also proved
Shewmaker had stolen merchandise from Walmart on January 11, 2017. The
trial court found Shewmaker in violation of her probation based on
Shewmaker’s admissions and the proof of theft, and it revoked one year of
Shewmaker’s eight-year suspended sentence.
Discussion and Decision
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[5] The ability to serve a sentence on probation has been described as a “matter of
grace” and a “conditional liberty that is a favor, not a right.” Rosa v. State, 832
N.E.2d 1119, 1121 (Ind. Ct. App. 2005) (internal citation omitted). “Probation
revocation is a two-step process. First, the court must make a factual
determination that a violation of a condition of probation actually has occurred.
If a violation is proven, then the trial court must determine if the violation
warrants revocation of the probation.” Sanders v. State, 825 N.E.2d 952, 955
(Ind. Ct. App. 2005) (internal citation omitted), trans. denied.
[6] Shewmaker argues the trial court should not have revoked her probation based
on her failure to pay restitution and her failure to maintain employment,
without also finding she was voluntarily unemployed. Shewmaker is correct
that probation should not be revoked if a probationer is unable to pay fees
through no fault of her own. Black v. Romano, 471 U.S. 606, 614 (1985), reh’g
denied.
[7] However, Shewmaker admitted using illicit drugs, and the State proved
Shewmaker committed theft. These two violations permit the court to revoke
probation. 1 See Baxter v. State, 774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002)
1
Shewmaker also argues the trial court failed to consider mitigators and aggravators when revoking her
probation. In a revocation hearing, a court is not required to consider mitigating or aggravating factors. See
Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993) (holding trial court did not err by declining to
consider mitigating circumstances before imposing sanction because Indiana Code section 35-38-2-3 does not
require a trial court to consider aggravating and mitigating factors when revoking probation), holding narrowed
by Patterson v. State, 659 N.E.2d 220, 222 n.2 (Ind. Ct. App. 1995) (trial courts should consider a probationer’s
mental state when deciding sanction for probation revocation). Accordingly, this argument is without merit.
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(violation of a single condition of probation is sufficient to revoke probation),
trans. denied. Thus, we find no reversible error in the court’s mention of
Shewmaker’s failure to maintain a job or pay restitution without determining
whether Shewmaker was voluntarily unemployed. See Figures v. State, 920
N.E.2d 267, 273 (Ind. Ct. App. 2010) (affirming revocation of probation despite
one alleged improper finding because revocation was supported by other
violations).
Conclusion
[8] As one violation is sufficient to revoke probation, the trial court did not abuse
its discretion when it revoked one year of Shewmaker’s probation based on her
use of illicit drugs and commission of theft. We affirm.
Affirmed.
Barnes, J., and Bradford, J., concur.
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