Opinion
24A-CR-346
06-26-2024
Darick R. Van, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT David L. Joley Fort Wayne, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Circuit Court The Honorable Ashley N. Hand, Judge The Honorable Jesus R. Trevino, Magistrate Trial Court Cause No. 02C01-2008-F5-305
ATTORNEY FOR APPELLANT David L. Joley Fort Wayne, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Darick Van appeals the trial court's sanction for his probation violation. The only issue he raises is whether the trial court abused its discretion by ordering him to serve a portion of his previously suspended sentence. We affirm.
Facts and Procedural History
[¶2] On August 2, 2020, Van was pulled over by law enforcement for having a partly obscured and illegible temporary registration. After running Van's driver's license number through the Bureau of Motor Vehicles system, law enforcement learned Van's driving status was "Habitual Traffic Violator-Life." App. at 14. Van was also on probation in another case, Cause No. 02C01-1812-F5-397 ("F5-397"). The State subsequently charged Van with Operating a Motor Vehicle After Lifetime Suspension, a Level 5 felony. The State also filed a petition to revoke Van's probation in F5-397. Van admitted to violating his probation under F5-397. On October 1, 2020, Van also entered a guilty plea to the charge in the instant case, and the court subsequently sentenced him to three years on probation, to run consecutively to his sentence in F5-397.
[¶3] On June 9, 2023, the Allen County Probation Department ("Probation") filed a petition to revoke Van's probation in the instant case because Van had failed to maintain good behavior by allegedly committing a new criminal offense, i.e., Level 6 felony possession of cocaine or a narcotic drug, as charged in a separate case, Case No. 02D06-2305-F6-643 ("F6-643"). The probation violation case was transferred from Allen Circuit Court to the Allen Superior Court so that Van could participate in the Drug Court Program. Van admitted to the probation violation, entered the Drug Court Program on July 10, 2023, and signed a participation agreement in which he agreed not to possess or use alcohol or drugs and to comply with the program's chemical testing policy.
I.C. § 35-48-4-6.
[¶4] On November 17, 2023, Van tested positive for alcohol during an oral test. He denied he had used alcohol and stated he used mouthwash prior to his test. On December 1, 2023, Van's urine was tested, and he advised it would be "dirty for blues" and admitted to using fentanyl over Thanksgiving weekend. App. at 73. Five to six fentanyl pills were found in Van's room, in addition to oxycodone that he was saving from his daily distribution. A "detox mouthwash" was also located in his room, which he intended to use prior to a mouth swab test to hide his use of fentanyl. Id. Based on the foregoing facts, on December 4, 2023, The Drug Court Case Manager filed a petition to terminate Van from the Drug Court Program for violating the terms of the Drug Court participation agreement. Van admitted the allegations of the petition, the court found that Van had violated the terms of the agreement, and the court revoked Van's participation in Drug Court.
[¶5] Van's case was transferred back to the Allen Circuit Court for disposition in light of his termination from the Drug Court Program. A Presentence Investigation Report ("PSI") was prepared and submitted to the court. The PSI showed that Van had been adjudicated a delinquent five times for felony theft, misdemeanor conversion, reckless possession of paraphernalia, misdemeanor resisting law enforcement, and misdemeanor dealing in marijuana. As an adult, Van had been convicted of eight misdemeanors and four felonies, most of which related to drug and driving offenses. Van was unsatisfactorily discharged from home detention twice, and home detention was revoked once. Regarding Van's suspended sentences, three were revoked and two were modified.
[¶6] The PSI report also outlined Van's history of extensive drug use and prior treatment for substance abuse issues. He has been in and out of alcohol and drug recovery programs over the years, and repeatedly relapsed. As a juvenile, Van was court-ordered to obtain a drug and alcohol assessment and follow all recommendations. As an adult, as part of a suspended sentence, Van was court-ordered to undergo a substance abuse evaluation, complete recommended treatment, and successfully complete all recommended rehabilitative interventions, including Addictions Residential Program; however, his suspended sentence was ultimately revoked.
[¶7] On January 5, 2024, the court found Van in violation of probation based on his termination from Drug Court. On January 19, the court revoked two years of Van's three-year suspended sentence, to be served consecutively to the sentence he had received in F6-643. In doing so, the court noted that Van was currently ineligible for supervision by Community Corrections because of the sentence in F6-643, but informed Van that the court would consider modifying his sentence to Community Corrections placement if he became eligible in the future. This appeal ensued.
Discussion and Decision
[¶8] Van challenges the trial court's decision to sanction his admitted probation violation by revoking the probation and ordering him to serve two years of his three-year suspended sentence. "Placement under either probation or a community corrections program is 'a matter of grace and a conditional liberty that is a favor, not a right.'" State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.1999)). We review probation violation sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). "An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law." Id. (citations omitted). "As with other sufficiency issues, we do not reweigh the evidence or judge the credibility of witnesses." Jenkins v. State, 956 N.E.2d 146, 148 (Ind.Ct.App. 2011) (citation and quotation omitted), trans. denied.
[¶9] A probation revocation proceeding is a two-step process. Heaton, 984 N.E.2d at 616. First, the trial court must determine whether the preponderance of the evidence showed that a probation violation occurred. Id.; I.C. § 35-38-2-3. Second, the trial court must determine whether the probation violation warrants revocation of probation or some lesser sanction. Heaton, 984 N.E.2d at 616. In making the latter determination, the trial court may consider such factors as the defendant's criminal history. See, e.g., Slater v. State, 223 N.E.3d 298, 307 (Ind.Ct.App. 2023) (holding the defendant's criminal history supported the sanction for probation violation).
[¶10] Indiana Code Section 35-38-2-3(h) provides:
If the court finds that the person has violated a condition at any time before termination of the period, 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.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Our Supreme Court has held that this statute "permits judges to sentence offenders using any one of or any combination of the enumerated powers." Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). And, while probationers must be given the opportunity to present mitigating factors, Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), the trial court is not required to consider aggravating and mitigating factors when deciding whether to revoke probation, Porter v. State, 117 N.E.3d 673, 675 (Ind.Ct.App. 2018). Moreover, a single violation of a condition of probation is sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d 752, 755 (Ind.Ct.App. 2015).
[¶11] Here, Van admitted he violated his probation by using fentanyl, possessing fentanyl pills, and possessing "a product whose stated purpose is to mask or adulterate a chemical test," i.e., a "detox mouthwash." App. at 61. It is also undisputed that Van has a criminal history replete with drug- and driving-related convictions, that he has been given multiple opportunities in the past to address his drug problems through rehabilitative alternatives to incarceration, and that he has repeatedly failed to avail himself of those alternatives by relapsing and/or committing additional crimes. The trial court acted well within its discretion when it revoked Van's probation and ordered him to serve a portion of his previously imposed sentence. Van's contentions to the contrary are simply requests that we reweigh the evidence, which we may not do. See, e.g., Jenkins, 956 N.E.2d at 148.
Conclusion
[¶12] The trial court did not abuse its discretion when it revoked Van's probation and ordered him to serve a portion of his previously imposed sentences.
[¶13] Affirmed.
Altice, C.J, and Mathias, J., concur.