MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 30 2018, 9:03 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
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jody A. Cliver, May 30, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-194
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
84D01-1406-FD-1729
84D01-1503-F6-669
Najam, Judge.
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Statement of the Case
[1] Jody A. Cliver appeals her sentence following the trial court’s revocation of her
probation. Cliver presents a single issue for our review, namely, whether the
trial court abused its discretion when it ordered her to serve the balance of her
sentence in the Department of Correction. We affirm.
Facts and Procedural History
[2] In January of 2017, Cliver pleaded guilty to fraud, as a Class D felony, and to
obtaining a controlled substance by fraud or deceit, as a Level 6 felony. In
exchange for her guilty plea, the State dismissed three additional charges that
were pending against Cliver, including two felony allegations. The court
accepted Cliver’s guilty plea and sentenced her to an aggregate term of five
years suspended to probation. In particular, the court ordered Cliver to “reside
in and successfully complete sober living.” Appellant’s App. Vol. 2 at 19, 31.
[3] In June, the State filed a notice of probation violation in which the State alleged
that Cliver had been discharged from her residential program “for violating
program rules against the use of illicit drugs and non-prescription medication.”
Id. at 108. In a September order on that notice of probation violation, the court,
“[b]y agreement of the parties,” ordered Cliver “released on her own
recognizance” to a different residential program, “to reside there until further
order of the court,” and to “comply with all rules” of the new program. Id. at
119. The court warned that “[a]ny violation will result in defendant’s return to
the Vigo County Jail.” Id.
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[4] One week later, the State filed an amended notice of probation violation. In the
amended notice, the State alleged that, following the court’s September order,
Cliver was discharged from the second residential program “for having
narcotics in her possession and . . . offering them to other . . . residents.” Id. at
120. At an ensuing evidentiary hearing, Cliver admitted to the alleged
violations at both residential programs. The court then revoked Cliver’s
probation and ordered her to serve the balance of her five-year sentence in the
Indiana Department of Correction. However, the court directed Cliver to serve
purposeful incarceration and stated that, upon her successful completion of the
clinically appropriate substance abuse treatment program, the court “will
consider a modification to this sentence.” Id. at 136. This appeal ensued.
Discussion and Decision
[5] Cliver appeals the trial court’s order that she serve the balance of her previously
suspended sentence. Probation is a matter of grace left to trial court discretion.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a
defendant has violated a condition of her probation, the trial court may “[o]rder
execution of all or part of the sentence that was suspended at the time of initial
sentencing.” Ind. Code § 35-38-2-3(h)(3) (2017). We review the trial court’s
sentencing decision following the revocation of probation for an abuse of
discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of
discretion occurs “only where the trial court’s decision is clearly against the
logic and effect of the facts and circumstances” before the court. Robinson v.
State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the
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evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-
40 (Ind. 2003). Rather, we consider only the evidence most favorable to the
trial court’s judgment to determine if there was substantial evidence of
probative value to support the court’s ruling. Id.
[6] Here, Cliver asserts that the trial court abused its discretion when it ordered her
to serve the balance of her previously suspended sentence because she testified
that her possession of narcotics at the second residential program was consistent
with a prescription, even though she mistakenly kept the narcotics in her
possession instead of surrendering them to the program’s staff. Cliver also
notes that her probation officer stated that he had no reason to doubt Cliver’s
testimony that she was employed, although he had not been able to verify her
employment, and that he had made arrangements for her to stay at a third
residential program if so ordered by the court. Cliver further asserts that there
was no evidence that another county had placed a hold out for her, which the
trial court had inquired about during the evidentiary hearing.
[7] Cliver’s arguments on appeal are inconsistent with our standard of review. In
effect, Cliver simply asks that this court credit her testimony, which we cannot
do. Indeed, the trial court here expressly declined to credit Cliver’s testimony.
Tr. at 19. And neither are we persuaded that the probation officer’s
arrangements with a third residential program and whether or not a hold
against Cliver from another county played any role, or were required to play
any role, in the trial court’s judgment here. Accordingly, we reject Cliver’s
arguments on appeal.
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[8] The trial court’s judgment is supported by substantial evidence and was within
the court’s sound discretion. As the State points out, the trial court has treated
Cliver “generously.” Appellee’s Br. at 8. The court originally suspended the
entirety of her aggregate sentence. About six months later, the State filed its
original notice of probation violation based on Cliver’s continuing attempts to
use narcotics despite being in a residential program. But the court did not then
order Cliver to serve the balance of her sentence. Instead, the court gave her
another opportunity to serve her probation in a residential program and warned
her that any further violations would result in incarceration. Yet Cliver did not
heed the court’s warning. Rather, she again violated the conditions of her
probation when she had narcotics on her person at the second residential
program. And, in ordering Cliver to serve the balance of her previously
suspended sentence, the court has continued to leave open the opportunity for
Cliver to seek a modification upon her successful completion of purposeful
incarceration. Thus, the court’s order that Cliver serve the balance of her term
is supported by the record and well within the trial court’s discretion. We
affirm the court’s judgment.
[9] Affirmed.
Robb, J., and Altice, J., concur.
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