MEMORANDUM DECISION FILED
Apr 12 2017, 9:59 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marilyn K. Viers, April 12, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1609-CR-2106
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D04-1405-FD-563
Pyle, Judge.
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Statement of the Case
[1] Marilyn K. Viers (“Viers”) appeals the trial court’s revocation of her probation
and order for her to serve her previously suspended twelve-month sentence for
her conviction of Class D felony operating a vehicle while intoxicated with a
prior conviction.1 She argues that the trial court abused its discretion because it
should have considered her efforts to seek treatment for her alcohol addiction
and her inability to pay for a placement in community corrections. Because we
conclude that the trial court did not abuse its discretion, we affirm.
[2] We affirm.
Issue
Whether the trial court abused its discretion in revoking Viers’
probation.
Facts
[3] On October 13, 2014, Viers was convicted of Class D felony operating a vehicle
while intoxicated with a prior conviction. She was sentenced to eighteen (18)
months with six (6) months to be served in community corrections and twelve
(12) months suspended.
[4] On January 6, 2016, the probation department filed a petition for violation of
probation, alleging that Viers had violated her probation by committing three
1
IND. CODE § 9-30-5-3(a)(1).
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new offenses in cause number 20D04-1512-F6-1217 (“Cause 1217”): (1) Level
6 felony operating a vehicle while intoxicated with a prior conviction; (2) Class
A misdemeanor operating a vehicle while intoxicated endangering a person;
and (3) Class C misdemeanor operating a vehicle while intoxicated. The
probation department also noted that Viers’s charges indicated that she had
violated her probation by consuming alcoholic beverages.
[5] On July 13, 2016, Viers pled guilty to Level 6 felony operating a vehicle while
intoxicated with a prior conviction in Cause 1217. She also admitted to
violating her probation in the instant case. The trial court then held a hearing
to determine Viers’ sentence for her conviction in Cause 1217 and the sanction
for her probation violation in the instant case. At the hearing, sixty-four-year-
old Viers submitted a letter to the trial court in which she explained that she had
learning disabilities, physical disabilities, and mental health issues due to past
sexual assault and domestic violence. Her counsel also told the trial court that
Viers understood that she could no longer drink alcohol and that she had been
working diligently to treat her addiction problems since her previous
conviction. Specifically, Viers had completed a YMCA treatment program,
attended all AA meetings since the previous February, and completed
community service. She was also enrolled in aftercare for the YMCA program
and was attending economic empowerment programs at the YMCA. Viers’
counsel noted that her pre-sentence investigation report showed that she had a
low risk to reoffend.
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[6] In response, the State noted that Viers’ conviction in Cause 1217 was her fourth
conviction for operating while intoxicated and had involved an accident. The
State also pointed out that Viers had previously violated a placement in
community corrections and that this probation violation was the second in her
criminal history.
[7] In spite of this criminal history and her new offense, Viers requested that the
trial court allow her to continue her probation with alcohol monitoring. She
testified that she would lose her disability payments if she were placed in
community corrections, which would be difficult for her because she had been
struggling financially and her income was “very low.” (Tr. 29). She also
believed that she would have to give up her side jobs if she were placed in work
release.
[8] At the conclusion of the hearing, the trial court revoked Viers’ probation and
ordered her to serve her previously suspended twelve (12)-month sentence on
home detention. Viers now appeals.
Decision
[9] On appeal, Viers argues that the trial court abused its discretion when it revoked
her probation and ordered her to serve her previously-suspended twelve-month
sentence in community corrections. Specifically, she notes that prior to her new
offense, she had complied with all of the terms of her probation and had made
significant progress in her alcohol addiction treatment. In addition, she asserts
that she cannot afford placement in community corrections and argues that the
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trial court should have considered her inability to pay before revoking her
probation and placing her in community corrections.
[10] We have previously noted that:
Probation is a matter of grace and a conditional liberty [that] is a
favor, not a right. The trial court determines the conditions of
probation and may revoke probation if those conditions are
violated. The decision to revoke probation is within the sound
discretion of the trial court. And its decision is reviewed on
appeal for abuse of discretion. An abuse of discretion occurs
when the decision is clearly against the logic and effect of the
facts and circumstances before the court. Further, on appeal we
consider only the evidence most favorable to the judgment
without reweighing that evidence or judging the credibility of the
witness. If there is substantial evidence of probative value to
support the trial court’s decision that a defendant has violated
any terms of probation, the reviewing court will affirm its
decision to revoke probation.
Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015) (quoting Ripps v.
State, 968 N.E.2d 323 (Ind. Ct. App. 2012) (internal quotations and citations
omitted)).
[11] INDIANA CODE § 35-38-2-3(h) provides that if the court finds that a person has
violated a condition of probation, and the petition to revoke is filed within the
probationary period, the court may “impose one (1) or more of the following
sanctions[:]”
(1) Continue the person on probation, with or without
modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
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(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Accordingly, the trial court had the statutory authority to revoke Viers’
probation and require her to serve the remainder of her suspended sentence. See
I.C. § 35-38-2-3(h)(3).
[12] Nevertheless, Viers argues that the trial court abused its discretion because it
should have considered her previous efforts to receive alcohol addiction
treatment. We are not persuaded by this argument because, at Viers’ hearing,
the trial court noted that its sanction was an attempt to balance the need to help
her receive treatment and the need to keep her and members of the community
safe. Viers’ criminal history indicated that the trial court’s concern for safety
was especially relevant as Viers’ conviction in Cause 1217 was her fourth
conviction for driving while intoxicated. Significantly, she was on probation for
the same offense when she committed her Cause 1217 offense, and she got into
an accident as a result of her actions. In light of these facts, we find that the
trial court did not abuse its discretion when it ordered Viers to serve her
previously suspended sentence.
[13] Further, we conclude that the trial court did not abuse its discretion by ordering
Viers’ placement in community corrections without determining her ability to
pay for such a placement. Viers argues that “an offender’s ability to pay [must]
be considered before imposing imprisonment as a sanction for failure to comply
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with financial conditions associated with a sentence.” 2 (Viers’ App. 9). We
agree that a probationer’s probation may not be revoked due to a failure to pay
a financial condition. Woods, 892 N.E.2d at 641 (“[F]ailure to pay a probation
user fee where the probationer has no ability to pay certainly cannot result in a
probation revocation.”) However, that authority is not relevant here as Viers’
probation was not revoked as a result of her failure to pay a condition of her
probation; it was revoked because she committed a new felony offense. Viers
even acknowledges that the trial court did not impose incarceration as a result
of her inability to pay.
[14] Still, Viers argues that the “trial court should have considered [her] inability to
pay for home detention when deciding whether to revoke probation.” (Viers’
Br. 9). She does not present any legal support for that argument, though.
Because she has failed to support her argument with citations to legal authority,
she has waived it. See Waters v. State, 65 N.E.3d 613, 618 n.2 (Ind. Ct. App.
2016); Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we have not
found any legal support for Viers’ argument.3 To the contrary, we note that the
trial court was more lenient than it could have been. Under INDIANA CODE §
35-38-2-3(h), the trial court could have ordered Viers to serve her sentence in
the Department of Correction, but it allowed her to serve her sentence on home
2
Viers cites Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008) for this quote, but that passage is not in the
Woods opinion.
3
The State also failed to address this issue.
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detention in community corrections. We have previously held that placement
in a community corrections program is an alternative to commitment to the
Department of Correction and is made at the sole discretion of the trial court.
Brown v. State, 947 N.E.2d 486, 489 (Ind. Ct. App. 2011). “A defendant is not
entitled to serve [her] sentence in a community corrections program but, as with
probation, placement in the program is a ‘matter of grace’ and a ‘conditional
liberty that is a favor, not a right.’” Id. Accordingly, we conclude that the trial
court did not abuse its discretion when it revoked Viers’ probation and ordered
her to serve her previously suspended sentence on community corrections.
[15] Affirmed.
Baker, J., and Mathias, J., concur.
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Marilyn K. Viers v. State of Indiana (mem. dec.)
Combined Opinion