Merisha A. Bradtmueller v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
May 05 2017, 6:22 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Merisha A. Bradtmueller, May 5, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1609-CR-2234
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
The Honorable Samuel R. Keirns,
Magistrate
Trial Court Cause No.
02D06-1403-FB-62
May, Judge.
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[1] Merisha A. Bradtmueller appeals the trial court’s order that she serve eight
years of her suspended sentence following the revocation of her probation. We
affirm.
Facts and Procedural History
[2] On March 6, 2015, Bradtmueller pled guilty to Class B felony neglect of a child
resulting in serious bodily injury. The trial court sentenced her to ten years,
suspended the sentence, and ordered four years on probation.
[3] On July 7, 2015, Bradtmueller admitted she violated her probation by failing to
complete the Community Control intake required by the terms of her probation.
The court returned her to probation with the same conditions.
[4] On March 8, 2016, Allen County Community Corrections (“ACCC”) filed a
status report regarding Bradtmueller’s probation. The report indicated she had
complied with certain terms of her probation, but was out of compliance for a
multitude of reasons including failure to look for and obtain employment, non-
payment of fees, missed appointments, a positive drug screen, and termination
from both her substance abuse treatment and the Focusing on Resettlement
program. On March 21, 2016, the trial court noted Bradtmueller “continue[d]
to be out of compliance.” (App. Vol. II at 96.) The trial court went on to order:
“Defendant to remain on probation/community corrections on a Zero
Tolerance basis. Any violation of placement to be reported to the court
immediately.” (Id.)
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[5] On May 16, 2016, ACCC filed a report with the trial court indicating
Bradtmueller did not submit a weekly schedule and did not attend substance
abuse treatment or the Focusing on Resettlement program. Based on those
violations, the trial court ordered Bradtmueller to serve fifteen days in jail.
[6] On August 5, the trial court ordered Bradtmueller be taken into custody and
presented before the court on August 8, 2016, after “Community Corrections
Field Officers have [sic] found [Bradtmueller] in a severely intoxicated
condition believe[sic] to be caused by use of ‘SPICE’.” (Id. at 102.) The same
day, the State filed a petition to revoke Bradtmueller’s probation because she
“[d]id not maintain good behavior. [Bradtmueller] admitted to Allen County
Community Corrections Field Officers, [sic] that she had smoke[sic] Spice prior
to their arrival at her residence on August 5, 2016. (Id. at 103.) On August 25,
2016, Bradtmueller admitted she violated her probation. The trial court ordered
her incarcerated for eight years of her previously suspended ten-year sentence.
The court gave Bradtmueller credit for time she had served in jail and on home
detention, and ordered her to serve two years on probation.
Discussion and Decision
[7] Bradtmueller alleges the court abused its discretion by ordering her to serve
eight years of her previously suspended sentence. When reviewing a revocation
decision, we consider only the evidence most favorable to the judgment without
assessing credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005). We affirm unless the trial court abused its discretion. Prewitt v.
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State, 878 N.E.2d 184, 188 (Ind. 2007). “An abuse of discretion occurs where
the decision is clearly against the logic and effect of the facts and
circumstances.” Id.[8] Bradtmueller admitted she violated her probation, and “proof of a single
violation of the conditions of probation is sufficient to support the decision to
revoke probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005),
reh’g denied, trans. denied. On finding a defendant violated her probation, the
trial court may “[o]rder execution of all or part of the sentence that was
suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(h) (2016).
[9] The trial court ordered Bradtmueller to serve eight of her ten suspended years.
Bradtmueller argues that was an abuse of discretion because she “was able to
successfully complete 386 days on the Community Control program[,] . . .
maintain employment despite her intellectual deficiencies[,] . . . maintain a
household as a single mother of two children[, and] . . . did her best to comply
with the [Department of Child Services].” (Br. of Appellant at 18.) However,
the list of her accomplishments while on probation is overshadowed by her
repeated probation violations for failure to attend and complete treatment,
failure to maintain consistent employment, and positive drug screens. We
cannot say the trial court abused its discretion when, after exhibiting patience
and lenience with Bradtmueller for over one year of probation, it ordered her to
serve eight years executed and two years suspended to probation. See Prewitt,
878 N.E.2d at 188 (trial court did not abuse its discretion when it ordered
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Prewitt to serve a portion of his suspended sentence after Prewitt violated his
probation on multiple occasions).
Conclusion
[10] The trial court did not abuse its discretion when it ordered Bradtmueller to
serve eight years executed and two years suspended. Accordingly, we affirm.
[11] Affirmed.
Brown, J., and Pyle, J., concur.
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