Opinion
24A-CR-928
12-05-2024
Cory Edward Horton, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Bartholomew Circuit Court The Honorable Kelly S. Benjamin, Judge Trial Court Cause No. 03C01-2205-F6-2500
ATTORNEY FOR APPELLANT
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Alexandria Sons
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Cory Edward Horton appeals the trial court's order revoking his probation and ordering him to serve his sentence in the Bartholomew County Jail. Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[¶2] In 2022, Horton pleaded guilty to Level 6 felony theft of property having a value of at least $750 and less than $50,000. The trial court sentenced him to 730 days, all suspended to probation. Among his probation terms were requirements he shall not possess or use alcohol, drugs/paraphernalia, controlled substances, hemp products, or poppy seed products; shall submit to drug testing; shall participate in and pay for programs and counseling deemed appropriate by the probation officer; and shall obtain a substance use evaluation and follow all recommendations. See Appellant's App. Vol. 2 at 88.
Ind. Code § 35-43-4-2(a)(1)(A) (2021).
Concurrently with his plea in this matter, Horton pleaded guilty to Level 6 felony possession of methamphetamine under cause number 03C01-2206-F6-2828. The trial court sentenced him to 547 days, to be served in the Bartholomew County Jail. He was to serve his sentence in this matter consecutively to the sentence in Cause 2828.
[¶3] Horton was released to community corrections in March 2023 and began receiving treatment for substance use disorder at the Treatment and Support Center ("TASC"). He was transferred to probation in September for "lesser supervision." Tr. Vol. 2 at 17. In December, he was terminated from TASC due to attendance issues. On January 25, 2024, Horton tested positive for methamphetamine and fentanyl on a drug screen. Probation returned Horton to community corrections on Friday, February 9, where he again tested positive for illegal drug use. Community corrections referred Horton to Centerstone Recovery Center for treatment to begin the following Monday. He was held in the Bartholomew County Jail over the weekend. He again tested positive for illicit drugs on February 12 and admitted to using drugs while incarcerated. After he arrived at Centerstone and completed an evaluation, the center determined he should attend a short-term detox program for three to five days to safely detox before returning to Centerstone for treatment. On arriving at the detox facility, Horton refused to sign a release of information so that Centerstone would know when to pick him up. Horton stayed at the detox facility until February 21 but upon release did not return to Centerstone. Community corrections could not locate him, and the trial court issued a warrant for his arrest. When the Bartholomew County Sheriff's Department picked Horton up, they took him to the hospital because he displayed withdrawal symptoms.
[¶4] The State petitioned to revoke Horton's probation, alleging he violated his probation conditions by, among other things: testing positive for methamphetamine and fentanyl on January 25; admitting to marijuana and alcohol use on the same day; being terminated from treatment at TASC; testing positive for fentanyl and benzodiazepines again in January; testing positive for methamphetamine, amphetamines, cocaine, and fentanyl on February 9; testing positive for methamphetamine, benzodiazepines, fentanyl, and cocaine on February 12; failing to return to a recovery center program after leaving to detox; testing positive for methamphetamine, amphetamines, and fentanyl on March 7; admitting to using methamphetamine and fentanyl two days prior; and failing to complete the recovery center program.
[¶5] At a probation violation hearing held on March 21, Horton admitted to violating his probation terms. He explained his brother's death in November triggered a relapse and expressed his desire to enter a long-term treatment program. Horton introduced into evidence a letter from a recovery center stating he had been accepted into its program. At the end of the hearing, the trial court noted Horton had several prior probation violations in other cases, revoked his probation, and ordered him to serve 730 days in the Bartholomew County Jail, with credit for time served.
The trial court did not abuse its discretion by revoking Horton's probation.
[¶6] Probation is a matter of grace, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Sentencing decisions for probation violations are left to the trial court's discretion. Id. We reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶7] "Probation revocation is a two-step process." Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the trial court must make a factual determination of whether the probationer violated a condition of probation. Id. If the trial court identifies a violation, it must then "determine if the violation warrants revocation of the probation." Id. Upon finding a probation violation, the trial court may impose one 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[;] (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing." I.C. § 35-38-2-3(h) (2015). "While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant's probation violation[.]" Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013).
[¶8] On appeal, Horton does not dispute he violated his probation terms. Rather, he argues the trial court should have extended him additional grace because his underlying offense and probation violations were non-violent, he was struggling with addiction relapse triggered by his brother's death, he was forthright about his problem, and he had been accepted into a treatment program. We acknowledge the challenges facing those who suffer with substance use disorder. That said, Horton had opportunities to engage with treatment but failed to take advantage of them. While on probation, he was terminated from TASC due to poor attendance. And after testing positive for illicit substances, including methamphetamine, fentanyl, and cocaine, community corrections referred him to Centerstone and arranged his transportation there. But after safely detoxing, Horton failed to return to Centerstone. He again tested positive for illegal substance use after his initial hearing. Although Horton was accepted into a long-term treatment program just days before the probation revocation hearing, it was within the trial court's discretion to consider Horton's past failure to engage in treatment when determining whether to revoke Horton's probation. See Comer v. State, 936 N.E.2d 1266, 1269 (Ind.Ct.App. 2010) ("The consideration and imposition of any alternatives to incarceration are matters of grace left to the discretion of the trial court.") (internal quotation marks and alteration omitted), trans. denied. And as the trial court noted at the end of the hearing, this was not Horton's first probation violation. His history of violations in prior cases reveals Horton has failed to take advantage of past grace afforded to him.
Conclusion
[¶9] The trial court did not abuse its discretion by revoking Horton's probation and ordering him to serve his sentence in the Bartholomew County Jail.
[¶10] Affirmed.
Felix, J., and DeBoer, J., concur.