Bryan Scholtes v. State of Indiana ( 2012 )

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: ATTORNEYS FOR APPELLEE:
JEFFREY E. STRATMAN GREGORY F. ZOELLER
Aurora, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
FILED
Indianapolis, Indiana
Sep 24 2012, 9:31 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
BRYAN SCHOLTES, )
)
Appellant, )
)
vs. ) No. 15A05-1202-CR-78
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Jonathon N. Cleary, Judge
Cause No. 15D01-0812-FD-267
September 24, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Bryan Scholtes (“Scholtes”) pleaded guilty in Dearborn Superior Court to Class D
felony possession of a schedule IV controlled substance and was sentenced to 1,095 days
with 945 suspended to reporting probation. The State subsequently filed a petition to
revoke Scholtes’s probation, because he tested positive for morphine and hydrocodone.
The trial court revoked the remaining 527 days of Scholtes’s probation. Scholtes appeals
and argues that revoking the remaining 527 days of his suspended sentence was an abuse
of the trial court’s discretion.
We affirm.
Facts and Procedural History
On January 22, 2009, Scholtes pleaded guilty in Dearborn Superior Court to Class
D felony possession of a schedule IV controlled substance and was sentenced on
February 13, 2009, to 1,095 days with 945 suspended to reporting probation. Scholtes’s
conditions of probation included obeying “all city, county, state and federal laws,” not
using “any illegal drugs or controlled substances,” and agreeing “to drug/alcohol testing
by the probation department or law enforcement officer.” Appellant’s App. p. 55.
On December 7, 2010, the State filed its first petition to revoke Scholtes’s
probation. On January 21, 2011, Scholtes admitted to violating his probation by
committing the criminal offense of operating a vehicle with a suspended license. The
trial court revoked 180 days of his previously suspended sentence with two days to be
served through incarceration and the remainder to be served through Southeast Regional
Community Corrections intensive in-home detention.
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Three weeks later, on February 11, 2011, the State filed a second petition to
revoke Scholtes’s probation. On April 11, 2011, Scholtes admitted to violating his
probation by using a controlled substance, namely opiates and oxycodone, and the court
ordered him to serve 238 days of his suspended sentence and extended his probation by
one year.
While serving his probation, Scholtes began participating in the trial court’s
alternative drug and substance abuse court. Between August 31, 2011 and October 5,
2011, Scholtes either tested positive for or self-reported illegal substance abuse on three
separate occasions. Tr. pp. 6-7.
On January 6, 2012, Scholtes submitted to a urine drug screen and tested positive
for morphine and hydrocodone. The State subsequently filed a third petition to revoke
his probation. At the January 19, 2012 hearing, Scholtes admitted to using a controlled
substance. The trial court found that since this was his third probation violation, ordering
Scholtes to serve the 527 days of his previously suspended sentence was appropriate.
Scholtes now appeals.
Discussion and Decision
The trial court’s decision whether to revoke probation is reviewed for an abuse of
discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of
discretion occurs if the decision is against the logic and effect of the facts and
circumstances before the court.” Id. Under Indiana Code section 35-38-2-3(a), a petition
to revoke probation may be filed if a person violates a condition of probation during the
probationary period. In addition under Indiana Code section 35-38-2-1(b), the court may
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revoke probation if a probationer commits any additional crime. If a person is found to
have violated his probation, the trial court can “[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(g)(3).
Scholtes argues that revoking 527 days of his suspended sentence was an abuse of
the trial court’s discretion. He asserts that the trial court failed to consider mitigating
factors such as his admission of responsibility and the lack of severity of the allegations
of his probation violation, namely, failing a drug screen. He also points to his efforts in
drug court as a mitigator. See Appellant’s Br. at 4-5.
A probationer must be provided the opportunity to present evidence that mitigates
his violation. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App. 2006). However, trial
courts are not required under Indiana Code section 35-38-2-3 to balance “aggravating or
mitigating circumstances when imposing sentence in a probation revocation proceeding.”
Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993), overruled in part on other
grounds by Patterson v. State, 669 N.E.2d 220, 223 n. 2 (Ind. Ct. App.1 995) (holding
that in a probation revocation proceeding, probationer’s mental health should be
considered).
Here, Scholtes was permitted the opportunity to present evidence mitigating
his violation. Tr. p. 8.
The trial court stated revoking Scholtes’s probation was appropriate, because this
was “a third probation violation” and his “probation violations while on drug court” were
of a “serious nature.” Tr. p. 9. We agree. Scholtes committed three separate probation
violations, and two of the violations were related to his initial criminal offense of
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possession of a schedule IV controlled substance. Under these facts and circumstances,
the trial court did not abuse its discretion by revoking the 527 days of Scholtes’s
suspended sentence.
Affirmed.
VAIDIK, J., and BARNES, J., concur.
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