Jody A. Bush v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 31 2019, 8:35 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jody A. Bush, January 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1908
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
84D01-1609-F6-2453
84D01-1701-F6-0327
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019 Page 1 of 4
[1] Jody Bush appeals the sanction imposed after the trial court revoked his
probation, arguing that it was erroneous to order that he serve the balance of his
previously suspended sentence in the Department of Correction (DOC).
Finding no error, we affirm.
[2] On July 3, 2017, Bush pleaded guilty to Level 6 felony fraud under one cause
and to Level 6 felony possession of marijuana under another cause. On the
same day, the trial court sentenced Bush to an aggregate term of four years,
fully suspended to probation.
[3] In less than two months, the probation department filed a notice of probation
violation after Bush twice tested positive for amphetamines, methamphetamine,
and THC; failed to comply with his call-in protocol; failed to take six drug
screens; failed to report for a substance abuse assessment; and failed to comply
with the Department of Child Services (DCS), which was involved with Bush
and his family. Before the violation hearing, the probation department filed an
amended notice of probation violation, indicating that Bush had failed five
additional drug screens. The trial court found that Bush had violated probation
but ordered that he continue with probation.
[4] Nine days later, the probation department filed second and third notices of
violation, reporting seven additional failed drug screens. The trial court ordered
Bush to continue with probation so that he could schedule a foot surgery. He
did not schedule the surgery. Within a month, the probation department filed a
fourth notice of violation, reporting that Bush had failed to report to probation
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019 Page 2 of 4
three times, failed to report for a drug screen, and tested positive for
amphetamine and methamphetamine.
[5] At the hearing on the fourth violation notice, Bush’s probation officer testified
that he did not believe that the local addiction center would provide Bush with
the needed level of assistance. He also testified that based on Bush’s lack of
compliance over seven months of probation, he did not believe that Bush could
be successful on probation. The trial court revoked probation and ordered that
Bush serve the balance of his previously suspended sentence. The trial court
recommended placement in the Purposeful Incarceration program and agreed
to consider a modification upon successful treatment and participation. Bush
now appeals.
[6] Probation is a matter of grace left to trial court discretion rather than a right to
which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
The trial court determines the conditions of probation and if the conditions are
violated, the trial court may revoke probation. Id. The judge has “considerable
leeway in deciding how to proceed,” and we will reverse only if the decision is
clearly against the logic and effect of the facts and circumstances. Id.[7] Bush argues that he is struggling with addiction, which is patently true. He
points out that it is not uncommon for people dealing with an addiction to
relapse, which is also true. And while we sympathize with his struggles with
both addiction and mental health issues, the simple fact is that the evidence in
the record establishes that he is unlikely to succeed on probation at this time. In
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1908 | January 31, 2019 Page 3 of 4
seven months of probation, he failed twenty-five drug tests, regularly missed
required probation calls, failed to report to probation, and missed a court
ordered substance abuse assessment. His probation officer testified that in his
opinion, the local addiction treatment options were not suitable for Bush and
that Bush would not succeed on probation.
[8] The trial court took Bush’s struggles into account by recommending that he
complete the Purposeful Incarceration program and indicating its willingness to
modify the sentence upon successful participation and treatment. Given this
record, we find that the trial court did not err by ordering that Bush serve the
balance of his previously suspended sentence.
[9] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
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