MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 31 2018, 9:02 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Evan K. Hammond Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Desha A. Richey, December 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1489
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1511-F5-131
Mathias, Judge.
[1] The Grant Superior Court revoked Desha Richey’s (“Richey”) probation and
ordered her to serve three years executed in the Department of Correction.
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Richey appeals and argues that the trial court abused its discretion when it
ordered her to serve her previously suspended three-year sentence.
[2] We affirm.
Facts and Procedural History
[3] In July 2016, Richey pleaded guilty in Grant Superior Court to Level 5 felony
possession of a narcotic drug, Level 6 felony unlawful possession of a syringe,
and Class C misdemeanor possession of paraphernalia. She was ordered to
serve an aggregate four-year sentence, with one year executed in the
Department of Correction and three years suspended to supervised probation.
[4] On August 10, 2017, Richey tested positive for marijuana, opiates, and
amphetamines. Richey admitted that she had violated her probation. She
entered into an agreement with the State to enroll in the “Recovery Matters”
inpatient treatment program and continue her probation. Richey enrolled in an
inpatient treatment program1 on September 18, 2017, but she left the program
two days later against the advice of her treatment provider. She also failed to
report her decision to leave the program and her whereabouts to Grant County
Probation.
[5] On September 20, 2017, the State filed a petition to revoke Richey’s probation.
A fact-finding hearing was held on May 21, 2018. Richey admitted to the
1
Recovery Matters did not have available beds. Therefore, Richey began an inpatient treatment program in
Merrillville, Indiana.
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allegations in the petition. The trial court found that Richey violated her
probation and ordered her to serve her previously suspended three-year
sentence in the Department of Correction. The court also recommended
Purposeful Incarceration. The trial court indicated it would modify Richey’s
sentence and return her to probation if she completed Purposeful Incarceration
successfully. Richey now appeals.
Standard of Review
[6] Richey contends that the trial court abused its discretion when it revoked her
probation and ordered her to serve her previously suspended three-year
sentence. Probation is a matter of grace left to the trial court’s sound discretion,
not a right to which a criminal defendant is entitled. 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 probationer violates those conditions. Id.
[7] The trial court’s sentencing decisions for probation violations are reviewable for
an abuse of discretion. Id. An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it or where the trial court misinterprets the law. Jackson v. State, 6 N.E.3d
1040, 1042 (Ind. Ct. App. 2014).
Discussion and Decision
[8] Richey admitted that she violated her probation. Therefore, the trial court had
the option of imposing one or more of the following sanctions: (1) continue
Richey’s probation, with or without modifying or enlarging the conditions; (2)
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extend her probationary period for not more than one year beyond the original
probationary period; or (3) order execution of all or part of the sentence that
was suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(h).
[9] Richey argues that the trial court abused its discretion when it ordered her to
serve her previously suspended three-year sentence because the court
“sentenced her without finding any mitigating factors.”2 Appellant’s Br. at 7. A
probationer who admits the allegation must be given an opportunity to offer
mitigating evidence suggesting that the violation does not warrant revocation.
See Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
[10] After admitting that she violated her probation and to using illegal substances,
Richey explained why she left the inpatient treatment center. Richey stated that
she was being sexually harassed by fellow patients, which caused her to suffer
anxiety. Tr. p. 11. Richey also admitted that she failed to report to probation
and keep her probation officer notified of her whereabouts, but stated she did so
because she was taking care of her ill grandfather.
[11] The trial court considered Richey’s testimony and noted that “the goal of
everyone is for Ms. Richey to get clean. If she gets clean, she’s got a better
chance of making good decisions.” Id. at 23. Because voluntary treatment had
not been successful, the trial court ordered executed time to be served in
2
Richey cites to Anglemyer v. State, 875 N.E.2d 218, 219 (Ind. 2007), but the holding and analysis discussed in
Anglemyer applies to Indiana’s criminal sentencing statutes and not to a sentence imposed following
revocation of probation. See Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).
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Purposeful Incarceration. And upon successful competition of Purposeful
Incarceration, the trial court indicated it would modify Richey’s sentence and
return her to probation. Id.
[12] The trial court thoughtfully considered Richey’s circumstances when it ordered
her to serve her previously suspended three-year sentence. For these reasons, we
conclude that the trial court did not abuse its discretion when it revoked
Richey’s probation and sentenced her accordingly.
[13] Affirmed.
Bailey, J., and Bradford, J., concur.
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