Opinion
C 21A-CR-2694
05-04-2022
Amy L. Watterson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Robert P. McGrath Alcorn Sage Schwartz & Magrath Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Myriam Serrano-Colon Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Decatur Superior Court The Honorable Matthew D. Bailey, Judge Trial Court Cause No. 16D01-1904-F6-464
ATTORNEY FOR APPELLANT Robert P. McGrath Alcorn Sage Schwartz & Magrath Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Myriam Serrano-Colon Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Amy Watterson (Watterson), appeals the trial court's revocation of her probation and imposition of 120 days of her previously suspended sentence.
[¶2] We affirm.
ISSUE
[¶3] Watterson presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by revoking Watterson's probation and ordering that she serve 120 days of her previously suspended sentence in the Department of Correction (DOC).
FACTS AND PROCEDURAL HISTORY
[¶4] On April 11, 2019, the State filed an Information, charging Watterson with Count I, possession of methamphetamine, a Level 6 felony, and Count II, possession of marijuana, a Class B misdemeanor. On June 11, 2020, Watterson pleaded guilty to both Counts in exchange for which the State recommended a total sentence of 360 days, suspended to probation. The trial court accepted the plea agreement and followed the State's recommendation, imposing a suspended sentence of 360 days. That same day, Watterson commenced probation. As a term and condition of probation, Watterson agreed not to commit any criminal acts. On February 5, 2021, Watterson was arrested for stealing merchandise from Wal-Mart in Jennings County, for which the State filed an Information, charging her with theft on April 1, 2021. Additionally, Watterson was charged with theft and criminal trespass in Jefferson County and possession of methamphetamine in Clark County.
[¶5] On April 21, 2021, the State filed a petition to revoke Watterson's probation. During the hearing on November 4, 2021, Watterson admitted that she had violated the terms and conditions of her probation by being charged with crimes in Jefferson and Clark Counties and by being convicted of theft in Jennings County. She clarified that she had "screwed up":
I'm having a midlife crisis. My ex-old man of 15 years left me and my child, just up and left us in - while we were swimming together, and I just - it spiraled downhill since then and things have been bad. I got into an abusive relationship after that and it got worse. And I'm trying now to pull myself together and do better.
(Transcript Vol. II, pp. 14, 17). At the close of the hearing, the trial court found that Watterson had violated the terms of her probation, terminated the probation, and imposed 120 days of her previously suspended sentence to be served at the DOC.
DISCUSSION AND DECISION
[¶6] Watterson appeals the trial court's Order, revoking her probation and imposing 120 days of her previously suspended sentence. "Probation is a matter of grace left to the trial court's discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the trial court to determine probation conditions and to revoke probation if these conditions are violated. Id. We review the appeal from a trial court's probation determination and sanction for an abuse of discretion. See id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). A probation hearing is civil in nature and the State need only prove the alleged violation by a preponderance of the evidence. Id.
[¶7] Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition has occurred. Sanders v. State, 825 N.E.2d 952, 955 (Ind.Ct.App. 2005), trans. denied. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation. Id. However, where, as here, a probationer admits to the violations, the trial court can proceed immediately to the second step of the inquiry and determine whether the violation warrants revocation. Id. In determining whether the violation warrants revocation, the probationer must be given an opportunity to present evidence that explains and mitigates his or her violation. See id. Once a violation has been found and revocation of probation is warranted, 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 year beyond the original probationary period; or (3) order execution of all or part of the sentence that was suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(h).
[¶8] Watterson commenced her probation on June 11, 2020. At that time, she acknowledged that she was required to comply with the terms and conditions of probation, including refraining from committing new criminal offenses. However, not even eight months into her probation, Watterson was charged with theft and convicted of this offense, in addition to accruing new criminal charges in two other counties. During the probation revocation hearing, she admitted to having committed these new offenses.
[¶9] In support of her claim that the trial court abused its discretion, Watterson argues that she was compliant with the other terms and conditions of her probation and she "refrained from drug use following her most recent charge." (Appellant's Br. p. 8). A successful probation does not depend upon substantial compliance where compliancy with some of the terms and conditions of probation is sufficient; rather, Watterson was required to follow all of the terms and conditions, since a single "violation of a condition of probation is enough to support a probation revocation." Pierce v. State, 44 N.E. 3d 752, 755 (Ind.Ct.App. 2015). Furthermore, Watterson's assertion that she remained drug-free following the most recent charge rings hollow, as one of the pending charges in Clark County is for possession of methamphetamine, similar to Watterson's underlying charges for which she was placed on probation.
[¶10] Watterson also contends that the trial court abused its discretion in ordering her to serve 120 days of her previously suspended sentence because she has a "fragile medical condition" and she "fears losing her disability income because of incarceration." (Appellant's Br. p. 9). However, Watterson fails to present any evidence to suggest that she cannot receive the medical care she requires in the DOC or that she will no longer be eligible to receive disability income upon her release.
[¶11] By her own admission, Watterson acknowledged knowing the rules of her probation and having violated them. Instead of taking advantage of the opportunity to "demonstrate [her] rehabilitation while serving part of [her] sentence outside the prison walls," Watterson was convicted of theft and incurred pending charges in two nearby counties within eight months of commencing probation. Purdy v. State, 708 N.E.2d 20, 23 (Ind.Ct.App. 1999). Although it would have been within the trial court's discretion to revoke the entirety of Watterson's previously suspended sentence, the trial court only imposed 120 days. See I.C § 35-38-2-3(h). Because we do not find the trial court's decision to be clearly against the logic and effect of the facts and circumstances, we affirm the trial court's Order. See Smith, 963 N.E.2d at 1112.
CONCLUSION
[¶12] Based on the foregoing, we conclude that the trial court did not abuse its discretion by revoking Watterson's probation and imposing 120 days of her previously suspended sentence.
[¶13] Affirmed.
[¶14] May, J. and Tavitas, J. concur