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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.

FILED
May 14 2009, 9:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN A. KESLER, II Terre Haute, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MURIAL A. PITT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 84A05-0811-CR-670

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable David R. Bolk, Judge Cause No. 84D03-0404-FC-1204

May 14, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Murial Pitt appeals the revocation of her probation. Pitt raises two issues, which we revise and restate as: I. II. Whether the evidence is sufficient to revoke Pitts probation; and Whether the trial court abused its discretion by ordering Pitt to serve three years of her suspended sentence.

We affirm. The relevant facts follow. On April 27, 2004, Pitt was charged with five counts of forgery as class C felonies. In September 2004, the trial court issued a warrant for Pitt because she failed to appear. On November 6, 2007, Pitt appeared in person in custody and was remanded to the custody of the Sheriff. On November 16, 2007, Pitt pled guilty as charged. As part of the plea agreement, Pitt was ordered to successfully complete an alcohol and drug program and be subject to random drug testing while on probation. The trial court sentenced Pitt to four years upon each count, ordered that the sentences be served concurrently, and ordered Pitt to serve 150 days in the Indiana Department of Correction with the remaining time suspended to probation. In March 2008, the State filed a Petition and Notice to Revoke Probation alleging that Pitt failed to comply with the Alcohol and Drug Transfer Program and had missed three appointments. On September 11, 2008, the State filed an Amended Notice of Probation Violation alleging that Pitt submitted a drug screen that tested positive for cocaine. After a hearing, the trial court found that Pitt had violated the conditions of her probation by (1) failing a drug screen; and (2) failing to keep her appointments with the 2

alcohol and drug program. Accordingly, the trial court revoked Pitts probation and ordered her to serve her three years in the Indiana Department of Correction. Specifically, the trial court stated, "Im going to order three years of the sentence to be executed. And upon her successful completion of half of that time and a [sic] alcohol and drug treatment program in the DOC, Ill consider releasing her at that point." Transcript at 45. I. The first issue is whether the evidence is sufficient to revoke Pitts probation. Probation is an alternative to commitment in the Department of Correction, and it is at the sole discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), rehg denied. A defendant is not entitled to serve a sentence in probation. Id. Rather,

probation is a "matter of grace" and a "conditional liberty that is a favor, not a right." Id. A revocation hearing is in the nature of a civil proceeding, so the alleged violation need be proven only by a preponderance of the evidence. Isaac v. State, 605 N.E.2d 144, 147 (Ind. 1992), cert. denied, 508 U.S. 922, 113 S. Ct. 2373 (1993). "We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses." Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995), rehg denied. "If there is substantial evidence of probative value to support the trial courts conclusion that a probationer has violated any condition of probation, we will affirm its decision to revoke probation." Id.

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Pitt concedes that she did not complete an alcohol and drug program but points out that "she did enroll in Stepping Stones and she did complete phase one which consisted of 3 times per week for 8 weeks." Appellants Brief at 12. Pitt also argues that the trial court abused its discretion because "[i]t appears on the surface that the defendant was, for the most part, in full compliance with the rules of probation." Id. The record reveals that, as part of the plea agreement, Pitt was ordered to successfully complete an alcohol and drug program and be subject to random drug testing while on probation. Pitt missed three appointments with the alcohol and drug program, did not complete the alcohol and drug program, and tested positive for cocaine. Given Pitts violations, there was sufficient evidence to support the trial courts revocation of Pitts probation. See Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992)

(affirming the trial courts revocation of defendants probation and holding that any one of the violations warranted revocation), clarified on denial of rehg, 605 N.E.2d 1207 (1993). II. The next issue is whether the trial court abused its discretion by ordering Pitt to serve three years of her suspended sentence.1 Probation is a matter of grace left to trial

Pitt cites Ind. Appellate Rule 7(B) and raises the issue of "[w]hether imposing a 3 year executed sentence is inappropriate in light of the nature of the offense and the character of the offender. " Appellants Brief at 1. This is not the correct standard to apply when reviewing a sentence imposed for a probation violation. See Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) ("A trial courts action in a post-sentence probation violation proceeding is not a criminal sentence as contemplated by the rule. The review and revise remedy of App. R. 7(B) is not available."); Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
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court discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Id. (citing Ind. Code Ann.

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