MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 25 2019, 9:11 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Matthew Michaloski
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Whitham, January 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1864
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
69C01-0906-FB-11
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1864 | January 25, 2019 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Justin Whitham (Whitham), appeals the trial court’s
revocation of his probation.
[2] We affirm.
ISSUE
[3] Whitham presents this court with one issue on appeal which we restate as
follows: Whether the trial court abused its discretion by revoking Whitham’s
suspended sentence and ordering his previously-suspended sentence to be
served at the Department of Correction (DOC).
FACTS AND PROCEDURAL HISTORY
[4] On June 24, 2009, the State filed an Information, charging Whitham with three
Counts of sexual misconduct with a minor, Class B felonies. On October 11,
2011, the State and Whitham filed a joint motion in tender of conditional
negotiated plea, in which Whitham agreed to plead guilty to one Count of
sexual misconduct with a minor, a Class B felony, in exchange for a
recommended sentence of eighteen years with three years suspended. The
following day, the trial court accepted the plea and sentenced Whitham to the
recommended sentence, as well as to the common conditions for probation,
including not to use controlled substances without a prescription and not to
commit another criminal offense. The trial court dismissed the two additional
Counts of sexual misconduct with a minor.
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[5] Whitham was released from the Department of Correction (DOC) on July 14,
2016 and placed on probation. On December 19, 2017, Whitham’s urine-
analysis drug screen at Ripley County Court returned positive for
methamphetamine use. At the time, Whitham denied any illegal drug use. On
December 27, 2017, an outside toxicology laboratory confirmed the positive
result of the drug screen. Consequently, on January 5, 2018, the State filed a
petition for probation violation hearing.
[6] On January 24, 2018, Whitham committed a new offense of possession of a
narcotic as a Level 6 felony. On February 20, 2018, the State amended the
petition for probation violation hearing by adding an allegation that Whitham
had committed this new offense. On July 2, 2018, the trial court conducted a
hearing on the State’s petition, during which Whitham admitted to the
violations and pled guilty. The trial court revoked the balance of Whitham’s
suspended sentence and terminated his probation.
[7] Whitham now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Whitham maintains that the trial court abused its discretion when it remanded
him to the DOC for the remainder of his previously-suspended 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. We
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review a trial court’s probation violation determination using an abuse of
discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014).
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. Id. In determining whether a trial court has abused
its discretion, we neither reweigh evidence nor judge witness credibility. Ripps
v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider
conflicting evidence in the light most favorable to the trial court’s ruling. Id.
[9] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation
is found, the court determines whether the violation warrants revocation. Id.
Because a probation revocation proceeding is civil in nature, the State need only
prove the alleged probation violation by a preponderance of the evidence.
Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single
violation is sufficient to permit a trial court to revoke probation. Beeler v. State,
959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.
[10] After Whitham admitted to both probation violations and pled guilty, the trial
court could impose one or more of the following sanctions: (1) continue
Whitham’s probation, with or without modifying or enlarging the conditions;
(2) extend his 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 the initial sentencing. Ind. Code § 35-38-2-
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3(h). Pursuant to the statute, the trial court chose to order the execution of all
of Whitham’s previously-suspended term.
[11] Relying on Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016), Whitham
characterizes the trial court’s decision as an unwarranted response to a minor,
‘technical’ violation because he had completed seventeen months of probation
without any known violations and immediately admitted to the allegations of
probation violation. In Johnson, the trial court revoked a mentally-handicapped
offender’s community correction placement for minor, technical violations such
as straying slightly beyond his prescribed boundaries and failing to rigidly
adhere to a schedule. Id. at 1231. We concluded that based on his level of
functioning and resources, his previous successful placement on work release,
the nature of the violation, and the severity of the court’s sentence, the trial
court abused its discretion by revoking the entirety of the remaining portion of
his executed sentence and remanding him to the DOC. Id.
[12] Unlike the minor violations of Johnson, Whitham’s violations were not trivial
and the consequences were not unexpected. Whitham used or possessed
controlled substances on two different occasions; the latter resulting in a new,
separate offense. Initially, Whitham tried to deceive the trial court by denying
his drug use before being confronted with the evidence of the outside testing
laboratory. Repeated use or possession of drugs is not a technical violation of a
minor probation term. Rather, the prohibition on committing further criminal
offenses is specified on the front page of the trial court’s judgment of conviction
and pronouncement of sentence and indicates that upon committing another
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criminal offense, the “probation may be revoked.” (Appellant’s App. Vol. II, p.
91).
[13] Whitham now attempts to use his admission to the probation violations to his
benefit, noting that he admitted to his violation “[a]t the very first opportunity,”
during the hearing and “threw himself upon the mercy of the court.”
(Appellant’s Br. p. 11). However, the evidence reflects that, at the time of the
probation violation hearing, Whitham had already been found guilty of the
January 2018 offense, possession of a narcotic drug. As such, the trial court
noted that “the probation violation is somewhat of a foregone conclusion.”
(Transcript p. 15). Accordingly, we conclude that the trial court did not abuse
its discretion by imposing Whitham’s previously-suspended sentence.
CONCLUSION
[14] Based on the foregoing, we affirm trial court’s revocation of Whitham’s
suspended sentence and imposition of his previously-suspended sentence to be
served at the DOC.
[15] Affirmed.
[16] Kirsch, J. and Robb, J. concur
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