MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 19 2019, 9:58 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
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Evan M. Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lonnie D. Sewell, June 19, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3026
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Frances C. Gull, Judge
Trial Court Cause No.
02D05-1606-F6-634
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3026 | June 19, 2019 Page 1 of 7
[1] Contending that the trial court abused its discretion, Lonnie D. Sewell
(“Sewell”) appeals the trial court’s decision to revoke his probation.
[2] We affirm.
Facts and Procedural History
[3] On August 9, 2016, Sewell pleaded guilty to dealing in a synthetic drug or
lookalike substance,1 a Level 6 felony, and resisting law enforcement,2 a Class A
misdemeanor.,. Tr. Vol. II at 9. He was sentenced to one year and 183 days for
Count I and one year for Count II. Id. at 17. The trial court ordered the
sentences to run concurrently with the 183 days to be executed and the one year
to be suspended. Id.
[4] On September 8, 2016, Sewell was ordered to serve the 183 days executed in
the Allen County Work Release Program. Id. at 35. On September 26, 2016,
Sewell’s placement in the work release program was revoked, and Sewell was
ordered to serve 183 days in the Allen County Jail with a year of probation to
follow. Id. at 53, 87.
[5] On June 3, 2017, Sewell was arrested on charges of possession of a synthetic
drug or lookalike substance, resisting law enforcement, and driving while
suspended (“June 2017 charges”). Id. at 74. On November 14, 2017, the State
1
See Ind. Code § 35-48-4-10.5(c)(2).
2
See Ind. Code § 35-44.1-3-1(a)(3).
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filed a petition to revoke probation. Id. at 58. Sewell admitted to the
allegations and was placed in the Drug Court program on November 27, 2017.
Id. at 68. On March 19, 2018, Sewell was cited for violation of Drug Court
rules and ordered to serve one night in jail. Id. at 70.
[6] Sewell submitted to a drug test on August 21, 2018, which was positive for
cocaine. Tr. Vol. II at 23. Sewell also: (1) failed to submit to drug screens on
August 20, August 27, and August 28; and (2) failed to appear in court on
September 4. Id. Lastly, Sewell was arrested on October 23 and charged with
resisting law enforcement, possession of cocaine, possession of a narcotic drug,
possession of a synthetic drug, and possession of marijuana. Id.
[7] The State filed an amended petition to revoke probation on October 29, 2018.
Appellant’s App. Vol. II at 74. This petition included both the allegations from
the arrest around June 2017 charges and that Sewell failed to complete Drug
Court requirements. Id. Sewell admitted to the allegations in the petition at a
hearing on November 5, 2018. Tr. Vol. II at 23. On the same day, Sewell’s
placement in the Drug Court program was revoked. Id.
[8] At the November 29, 2018 sentencing hearing, Sewell pleaded guilty to the
June 2017 charges. Id. at 28. Sewell admitted that he was an addict and that he
had relapsed. Id. at 32. Sewell requested alternative sentencing, but he was
ineligible because of his pending charges. Id. In addition to sentencing him on
the June 2017 charges, the trial court ordered Sewell’s suspended sentence
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revoked and ordered him to serve one year in DOC less the time served
awaiting resolution of the case. Id. Sewell now appeals his sentence.
Discussion and Decision
[9] Sewell argues that his revocation of probation and subsequent executed
sentence in DOC were inappropriate in light of the nature of the offense and the
character of the offender. Appellant’s Br. at 18. A trial court’s action in a post-
sentence probation violation proceeding is not a criminal sentence as articulated
in Appellate Rule 7(B). Wooten v. State, 946 N.E.2d 616, 622 (Ind. Ct. App.
2011) (citing Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s
action in a post-sentence probation violation proceeding is not a criminal
sentence as contemplated by the rule. The review and revise remedy of App. R.
7(B) is not available.”)), trans. denied. Rather than the independent review
afforded sentences under Appellate Rule 7(B), a trial court’s sentencing
decisions for probation violations are reviewed for an abuse of discretion. Jones,
885 N.E.2d at 1290. An abuse of discretion occurs where the discretion is
clearly against the logic and effect of the facts. Knecht v. State, 85 N.E.3d 829,
840 (Ind. Ct. App. 2017).
[10] “‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.
App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188. (Ind. 2007)), trans.
denied. “Courts in probation revocation hearings ‘may consider any relevant
evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.
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State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial
court to determine the conditions of a defendant’s probation and to revoke
probation if the conditions are violated.” Id. This court has stated that “all
probation requires ‘strict compliance’” because once the trial court extends this
grace and sets its terms and conditions, the probationer is expected to comply
with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641
(Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”
Id. If a violation is proven, the trial court must determine if the violation
warrants revocation of the probation. Sullivan v. State, 56 N.E.3d 1157, 1160
(Ind. Ct. App. 2016). Violating one condition of probation is enough to support
a probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).
[11] If the trial court concludes that the probationer has violated the terms of his
probation, the court may: (1) continue the probation, with or without
modifying or enlarging the conditions; (2) extend the probationary period for up
to one year; or (3) revoke the probation and order all or part of the sentence to
be executed. Ind. Code § 35-38-2-3(h).
[12] Sewell argues that revoking his probation was inappropriate given the
mitigating factors. Appellant’s Br. at 21. Revoking Sewell’s probation was not
an abuse of discretion; indeed, revocation of probation is one of the options
prescribed by the statute. See I.C. § 35-38-2-3(h)(3).
[13] Here, the trial court noted many aggravating factors which contributed to its
ordering Sewell’s suspended sentence to be served in DOC and noted that many
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rehabilitative measures that had been offered failed. Appellant’s App. Vol. I at
100. In addition, Sewell was not eligible for alternative sentencing because of
his pending charges. Tr. Vol. II at 34. The trial court did not abuse its
discretion in ordering Sewell to DOC.
[14] Sewell’s probation required that he obey the law and maintain good behavior.
While on probation, Sewell: (1) pleaded guilty to possession of a synthetic
drug, resisting law enforcement, and driving while suspended; and (2) tested
positive for cocaine and failed to submit to three drug screens. Tr. Vol. II at 22-
23. Sewell had pending charges from his arrest in October 2018 against him at
the time of sentencing that were also from his behavior while on probation. Id.
at 34. These violations of Sewell’s probation were sufficient to revoke
probation.
[15] At the sentencing hearing, the trial court noted the following aggravating
factors: Sewell’s juvenile record, his adult criminal record, and his failed efforts
at rehabilitation. Appellant’s App. Vol. I at 100. These failed efforts at
rehabilitation consisted of parole, Re-Entry Court, Work Release, Drug Court,
time served in DOC, and multiple treatment attempts. Id. Despite being
enrolled in all these rehabilitative programs, Sewell remained a “High” risk to
reoffend according to the IRAS. Id. at 91. The trial court must decide on what
action to take following a violation of probation. Here, Sewell violated his
probation on two different occasions by reoffending. Id. at 7, 74. Therefore,
the trial court did not abuse its discretion by ordering Sewell to serve all of his
previously suspended sentence in DOC.
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[16] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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