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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. ATTORNEY FOR APPELLANT: LEANNA WEISSMANN Lawrenceburg, Indiana

FILED
Jun 30 2010, 10:45 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EDDIE D. LOWE, Appellant-Defendant, vs. ) ) ) ) ) ) ) ) ) )

No. 58A01-0912-CR-615

STATE OF INDIANA, Appellee-Plaintiff.

APPEAL FROM THE OHIO CIRCUIT COURT The Honorable James D. Humphrey, Judge The Honorable Kimberly A. Schmaltz, Magistrate Cause No. 58D01-0308-FB-8

June 30, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Eddie D. Lowe appeals the revocation of his probation. Lowe raises one issue, which we revise and restate as whether the trial court abused its discretion by ordering him to serve his suspended sentence. We affirm. The facts most favorable to the probation revocation follow. In August 2003, Lowe was charged with attempted rape as a class B felony, burglary as a class B felony, criminal confinement as a class D felony, and sexual battery as a class D felony. Lowe pled guilty to the burglary and sexual battery counts and was sentenced to an aggregate term of twenty years for burglary as a class B felony, with eight years executed and twelve years suspended to probation, and to a term of three years for the sexual battery as a class D felony, to be served concurrent with the sentence for burglary. In April 2007, the State filed a request for probation violation hearing alleging that Lowe committed the criminal offense of possession of paraphernalia in violation of the terms of his probation. The State subsequently amended the request and alleged that Lowe had submitted to a drug screen and tested positive for cocaine and that Lowe had committed the offenses of interference with reporting a crime and domestic battery as class A misdemeanors in violation of the terms of his probation. In November 2007, the trial court found that Lowe violated the terms of his probation and ordered Lowe to serve one year of his previously suspended sentence. On May 15, 2009, the State filed a request for probation violation hearing alleging that Lowe had submitted to a drug screen on or about May 8, 2009 and that he "tested positive for Cannabinoids" in violation of the terms of his probation. 2 Appellant's

Appendix at 37. On May 21, 2009, the State filed an amended request for probation violation hearing alleging that on or around May 15, 2009 Lowe also committed, the criminal offense of maintaining a common nuisance in violation of the terms of his probation. On November 9, 2009, the trial court held a probation violation hearing at which Lowe admitted having used marijuana. The trial court revoked Lowe's probation and ordered him to serve the remaining eleven years of his previously suspended sentence. The sole issue is whether the trial court abused its discretion by ordering Lowe to serve the remainder of his suspended sentence. Lowe argues that the trial court abused its discretion in revoking the entire portion of his previously suspended sentence of eleven years. Lowe argues that "the fact that he admitted his probationary lapses did save the court time and judicial resources." Appellant's Brief at 4. Lowe argues that he "was abused by his stepmother from the time he was a young child," that he "started abusing alcohol and drugs when he was just fifteen years old," that "[w]hen his daughter was nine-years-old, she was raped and murdered," and that "[t]hrough out [sic] [his] difficult life, he has turned to alcohol and drugs . . . ." Id. at 4. Lowe further argues that "[o]n the surface, it would appear [he] is beyond rehabilitation" but that "looking closely at his criminal record reveals ten of his twenty-four convictions were directly related to alcohol or drug abuse." Id. at 5. Lowe argues that the cost to treat him for his drug addiction "would be far less" than the cost to house him at the Department of Correction, and that "getting [him] back to work would better serve the public needs than paying to 3

incarcerate him."

Id. at 6. Lowe also argues that he was "accused of having a small

amount of marijuana in his system" and that "the lab which tested [him] used a lower cutoff than laboratories certified by the federal government." Id. at 7. Finally, Lowe argues that "the revocation of eleven years was not necessary to bring about his reform . . . ." Id. The State argues that "Lowe has a particularly lengthy criminal history" and that "[b]ased on his criminal history, recent probation violations, and refusal to cooperate with therapy, Lowe is not a good candidate for additional probation or court ordered therapy of any kind." Appellee's Brief at 4. The State also argues that "[t]here is no question Lowe has experienced trauma and tragedy in his lifetime" but that "those experiences cannot excuse his chronic and violent criminal conduct." Id. Ind. Code

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