Kimberly Galbraith v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 02 2016, 8:53 am
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 ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kimberly Galbraith, February 2, 2016
Appellant-Defendant, Court of Appeals Case No.
36A04-1507-CR-1045
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff Poynter, Judge
Trial Court Cause Nos.
36C01-1304-FD-139
36C01-1402-FD-82
Baker, Judge.
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[1] Kimberly Galbraith appeals the trial court’s order revoking probation and
ordering her to execute the remainder of her sentences in two causes. Finding
no error, we affirm.
Facts
[2] On April 8, 2013, the State charged Galbraith with class D felony theft in Cause
Number 36C01-1304-FD-139 (Cause 139). On March 5, 2014, the State added
a count of class A misdemeanor criminal conversion. Galbraith pleaded guilty
to criminal conversion and the State dismissed the theft charge. On July 17,
2014, the trial court sentenced Galbraith—pursuant to the terms of her plea
agreement—to twelve months incarceration, fully suspended to supervised
probation.
[3] On February 11, 2014, the State charged Galbraith with class D felony theft,
class D felony possession of methamphetamine, and class A misdemeanor
possession of paraphernalia in Cause Number 36C01-1402-FD-82 (Cause 82).
On July 17, 2014, Galbraith pleaded guilty to class A misdemeanor possession
of paraphernalia in exchange for the dismissal of the other two charges. On
August 6, 2014, the trial court sentenced Galbraith—pursuant to the terms of
her plea agreement—to twelve months incarceration, fully suspended to
supervised probation, to be served consecutively to the sentence in Cause 139.
[4] As a condition of probation, Galbraith was required to refrain from use of
illegal drugs. On February 2, 2015, the State filed a petition to revoke
probation in both causes, alleging that Galbraith had violated probation by
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testing positive for methamphetamine. Galbraith admitted to the allegation at
an April 6, 2015, factfinding hearing. At that hearing, the trial court ordered
Galbraith to submit to weekly drug screens. At the June 26, 2015, sanctions
hearing, Galbraith’s probation officer testified that six drug screens were
administered to Galbraith between April 6 and June 4, 2015, and that Galbraith
tested positive for methamphetamine on every single screen. At the conclusion
of the hearing, the trial court revoked Galbraith’s probation in both cases and
ordered her to serve the previously-suspended portion of each sentence. The
trial court ordered the sentences to be served consecutively, as originally
ordered and as provided for in the plea agreement for Cause 82. Galbraith now
appeals.
Discussion and Decision
[5] 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).
We review a trial court’s probation determinations and sanctions for an abuse
of discretion. Id. The revocation of probation is in the nature of a civil action
rather than a criminal one; thus, the alleged violation need be proved only by a
preponderance of the evidence. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App.
2015), trans. denied. Violation of a single term or condition of probation is
sufficient to revoke probation. Id. When the procedures for revoking probation
have been properly followed—and there is no allegation in this case that they
were not—we will uphold the trial court’s imposition of the entire previously-
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suspended sentence. Wann v. State, 997 N.E.2d 1103, 1106 (Ind. Ct. App.
2013).
[6] In this case, Galbraith admitted to violating probation when she tested positive
for methamphetamine in January 2015. That evidence, alone, is sufficient to
support the revocation. Then, at the sanctions hearing, evidence was presented
that she proceeded to test positive for methamphetamine on each of six drug
screens. Presumably, had she tested clean between the factfinding and
sanctions hearings, the trial court would have been more amenable to showing
leniency. Yet she was unable to provide a single clean screen.
[7] Galbraith argues that there are mitigating circumstances to her case that the
trial court ignored. But when imposing a sentence in a probation revocation
proceeding, trial courts are not required to balance aggravating or mitigating
circumstances. Treece v. State, 10 N.E.3d 52, 59-60 (Ind. Ct. App. 2014), trans.
denied. Therefore, this argument is unavailing.
[8] Galbraith admitted to methamphetamine use and tested positive on six
consecutive screens. It should be noted that supervised probation was a term to
which she agreed as part of her two plea agreements. When offered leniency by
the State, Galbraith took advantage and used illegal drugs. We find no error in
the trial court’s decision to withhold its leniency the second time around.
[9] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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