MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 18 2018, 10:07 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
John T. Wilson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Burgess, July 18, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-208
v. Appeal from the
Henry Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kit C. Dean Crane, Judge.
Trial Court Cause No.
33C02-1402-FA-4
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 1 of 5
[1] Michael Burgess (“Burgess”) appeals his probation revocation, contending that
the trial court abused its discretion when, after Burgess failed two drug screens
and failed to comply with substance abuse treatment, it sentenced him to the
Indiana Department of Correction (“DOC”) for the remainder of his
previously-suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On March 26, 2013, Burgess pleaded guilty to dealing in a schedule II-
controlled substance, a Class B felony. He was sentenced to eighteen years in
the DOC with four years suspended. Appellant’s App. Vol. 2 at 24-25. Just over
a year after he started serving his sentence, Burgess filed a motion to modify his
sentence, and on January 26, 2016, the trial court agreed to suspend Burgess’s
remaining sentence to probation. Id. at 8, 9, 44. On June 29, 2017 and
September 6, 2017, the probation department filed petitions to revoke Burgess’s
probation because he tested positive for marijuana. Id. at 47-54. At the
dispositional hearing, the State presented testimony of Kevin Moore
(“Moore”), Burgess’s probation officer. Tr. Vol. II at 24, 27. Moore testified
that his first appointment with Burgess was on February 17, 2016, and
Since that time, I repeatedly tried to get the defendant to comply
with substance abuse treatment at Meridian Services. In all
honesty, I probably gave him longer than I should have before
the violation was filed. I continued to advise him that if he didn’t
comply, a violation would be filed. Not only did he not comply
with Meridian Services, he tested positive on two drug screens.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 2 of 5
Probation can only do so much, and we can’t do it for him. After
a certain point, it’s – it’s clear that -- that the defendant is not a
good candidate for probation, simply for the fact that he refused,
repeatedly, to comply with the terms and conditions that were
asked of him.
Id. at 28.
[4] Meridian Services, the center where Burgess was receiving treatment,
indicated that Burgess was “[n]on-compliant (Risk for relapse is predicted):
Inconsistent attendance in treatment, and not working in [sic] recovery.”
Appellant’s App. Vol. 2 at 51. Burgess admitted to the violations of the conditions
of his probation, and the trial court sentenced him to DOC for the remainder of
his previously suspended sentence. Tr. Vol. II at 43. Burgess now appeals.
Discussion and Decision
[5] Burgess argues that the trial court abused its discretion when it ordered him to
serve the remainder of his previously-suspended eighteen-year sentence.
“‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.
Ct. App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “The
trial court determines the conditions of probation and may revoke probation if
the conditions are violated.” Id.; see also Ind. Code § 35-38-2-3(a). “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.”
Prewitt, 878 N.E.2d at 188. “If this discretion were not afforded to trial courts
Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 3 of 5
and sentences were scrutinized too severely on appeal, trial judges might be less
inclined to order probation to future defendants.” Id. Accordingly, we review a
trial court’s probation violation determination for an abuse of discretion.
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law.” Jackson, 6 N.E.3d
at 1042.
[6] Probation revocation is a two-step process. Id. “First, the trial court must make
a factual determination that a violation of a condition of probation actually
occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).
“Second, if a violation is found, then the trial court must determine the
appropriate sanctions for the violation.” Id. If a defendant is found to have
violated probation, a trial court may (1) continue the defendant on probation;
(2) extend the probationary period for not more than one year beyond the
original period; or (3) order all or part of a previously-suspended sentence to be
executed. Ind. Code § 35-38-2-3(g).
[7] Under the terms of his probation, Burgess was not to purchase, possess, or
consume any alcoholic beverage, intoxicating liquor, marijuana, drug, or
controlled substance of any kind, unless legally prescribed to him. Tr. Vol. II at
5. On August 24, 2017, a probation violation hearing was held regarding a
positive drug screen that Burgess submitted to the Henry County Probation
Department on June 14, 2017. The drug screen indicated that Burgess had
used marijuana. The trial court ordered Burgess to submit to a random drug
Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 4 of 5
screen following the hearing, and Burgess admitted that he would likely fail the
drug screen because he was “stressing.” Id. at 10. The drug screen collected
was positive for marijuana.
[8] Burgess was required to obtain a substance abuse evaluation and follow any
recommended treatment as a term of his probation. Id. at 19. He admitted that
he stopped attending Meridian Services because he did not have health
insurance and stated that he started attending Anchor Behavioral Counseling.
Id. at 20. He did not complete his treatment at either agency. Id. at 21.
Because Burgess failed to comply with the terms of his probation, failed to
refrain from the use of illegal drugs, and failed to comply with substance abuse
treatment, the trial court revoked Burgess’s suspended sentence. The trial
court’s decision ordering Burgess to serve the remainder of his sentence at the
Indiana Department of Correction was not clearly against the logic and effect of
the facts and circumstance before it, and the trial court did not abuse its
discretion in revoking Burgess’s probation.
[9] Affirmed.
[10] Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-208 | July 18, 2018 Page 5 of 5