James Kucholick v. State of Indiana ( 2013 )

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 Dec 31 2013, 10:35 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E.C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES KUCHOLICK, )
)
Appellant-Defendant, )
)
vs. ) No. 34A05-1305-CR-255
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Judge
Cause No. 34D01-0912-FD-1164
December 31, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant James Kucholick appeals the trial court’s revocation of his
probation and argues that the trial court erred when it ordered his suspended sentences to
be executed. Kucholick admitted to violating his probation, but argues that the trial court
erred in ordering his sentences executed when his probation violations consisted of using
marijuana, which, Kucholick contends, is something “the majority of Americans don’t
even thin[k] should be a crime.” Appellant’s Br. p. 5. Kucholick’s flippancy concerning
violating Indiana law by using marijuana is simply one more illustration of his
disinclination to reform. In light of Kucholick’s repeated probation violations, we cannot
say that the trial court erred in revoking his probation or ordering the remainder of his
suspended sentences to be executed.
FACTS
On July 7, 2006, Kucholick pleaded guilty to class B felony possession of cocaine
and was given a fifteen-year sentence, with three and one-half years executed in in-home
detention, and the balance suspended to supervised probation. On September 29, 2010,
Kucholick pleaded guilty to class D felony possession of marijuana, and was sentenced to
two years, with six months executed and eighteen months suspended to supervised
probation. This sentence was ordered to run consecutive to Kucholick’s sentence for
possession of cocaine.
On May 3, 2012, the State filed a petition to revoke Kucholick’s suspended
sentence for possession of cocaine, and on August 3, 2012, the State filed a petition to
revoke his suspended sentence for possession of marijuana. On April 24, 2013, the trial
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court held a sentencing hearing. It heard evidence that Kucholick’s probation officer
reported that, out of the eight times Kucholick had been screened for marijuana, he had
only passed once. The probation officer also stated that Kucholick sometimes failed to
attend support group meetings as required by his probation and that once Kucholick
forged his meeting verification sheet. The trial court revoked Kucholick’s probation and
ordered that his suspended sentences be executed. Kucholick was ordered to serve the
remaining 548 days of his sentence for possession of marijuana, with 86 days credited,
and the remaining 3,236 days of his sentence for possession of cocaine, with 320 days
credit.
Kucholick now appeals.
DISCUSSION AND DECISION
The decision to revoke probation is within the sole discretion of the trial court.
Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). On appeal, we review that decision for
an abuse of discretion. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). We consider
only the evidence most favorable to the judgment without reweighing the evidence or
judging the credibility of the witnesses. Id. If we find there is substantial evidence of
probative value to support the trial court’s decision that a defendant violated the terms of
his probation, this Court will affirm the trial court’s decision to revoke probation. Id. at
639-40.
Here, Kucholick admitted that he had violated the terms of his probation by using
marijuana. Tr. p. 13-15. As noted above, Kucholick had failed seven out of eight drug
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screenings and was only sporadic in his attendance of the support group meetings he was
required to attend. Appellant’s App. p. 36. In light of these circumstances, there was
more than sufficient evidence for the trial court to determine that Kucholick had violated
his probation, and the trial court did not err when it revoked his probation and ordered
that the remainder of his suspended sentences be executed.
The judgment of the trial court is affirmed.
NAJAM, J., and CRONE, J., concur.
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