Kasi Ballew 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 Nov 27 2013, 5:37 am
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:
MATTHEW J. McGOVERN GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KASI BALLEW, )
)
Appellant-Defendant, )
)
vs. ) No. 22A01-1303-CR-141
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Maria D. Granger, Judge
Cause No. 22D03-1003-FB-622
November 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Kasi Ballew appeals the trial court’s revocation of her probation. The sole issue
presented for our review is whether the trial court abused its discretion when it revoked
Ballew’s probation and ordered her to execute four years of her previously suspended
sentence. Finding no abuse of discretion, we affirm.
Facts and Procedural History
On March 12, 2010, the State charged Ballew with class B felony dealing in a
schedule II controlled substance. Ballew pled guilty to that offense, and the trial court
accepted her plea on August 10, 2010. The trial court subsequently imposed the advisory
ten-year sentence with five years suspended to probation. Ballew appealed her sentence, and
another panel of this Court affirmed that sentence by memorandum decision. See Ballew v.
State, No. 22A04-1008-CR-555 (Ind. Ct. App. June 17, 2011).
On August 16, 2011, the trial court placed Ballew in a community transition program.
Thereafter, on June 25, 2012, the State filed a notice of probation violation against Ballew
followed by a petition to revoke probation. The State filed an amended petition to revoke
probation on January 7, 2013, alleging the following ten probation violations: (1) failure to
maintain good behavior; (2) violation of a state or federal law due to being charged with
another crime in cause number 22D03-1206-FD-1261; (3) failure to undergo drug and
alcohol counseling as ordered by the trial court; (4) failure to attend and/or reside in the
halfway house; (5) failure to undergo counseling as ordered by probation; (6) failure to
comply with day reporting; (7) use of alcohol and/or a controlled substance not prescribed by
2
a physician; (8) failure to work faithfully or pursue a course of study; (9) associating with
criminals; (10) failure to pay delinquent probationer fees. Appellant’s App. at 106.
Following an evidentiary hearing held on February 25, 2013, the trial court concluded
that the State established by a preponderance of the evidence that Ballew had violated several
conditions of her probation. Specifically, the court concluded that Ballew used a controlled
substance without a prescription based upon evidence that she failed drug screens and
presented a diluted drug screen to her probation officer. The court also concluded that
Ballew refused to reside at a halfway house as ordered by the court as a condition of her
probation. Ballew failed to undergo drug and alcohol counseling as ordered by both the court
and her probation officer, and she failed to report to the day reporting program, which was a
condition of her pre-hearing release on the petition to revoke probation. Finally, Ballew was
charged with another criminal offense while on probation after she and her boyfriend were
arrested in a house where controlled substances, hypodermic needles, and other drug
paraphernalia were present.
Based upon the evidence presented, the trial court concluded:
Defendant’s actions demonstrate that she will not submit to rehabilitation and
accept responsibility for compliance with the supervision and terms of
probation ordered by this Court. The defendant’s attitude and actions indicate
an unwillingness to submit to the authority of this court and a willful failure to
participate in her own rehabilitation, treatment and sobriety without
commitment to a penal facility. The defendant’s actions further indicate her
unwillingness to appreciate the consequences that result in not following the
law. The defendant’s violations of probation are of a nature that requires the
majority of the remainder of her probation be revoked. The objectives of
justice and protection of the community will not be met if the defendant were
to continue probation.
3
Id. at 113. Consequently, the trial court revoked Ballew’s probation and ordered her to
execute four of the five years of her previously suspended sentence. This appeal ensued.
Discussion and Decision
Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134 (Ind.
Ct. App. 2012), trans. denied. First, the trial court must make a factual determination that a
violation of a condition of probation has occurred. Id. Second, the trial court must make a
determination as to whether the violation warrants revocation. Id. It is well settled that
violation of a single condition of probation is sufficient to revoke probation. Wilson v. State,
708 N.E.2d 32, 34 (Ind. Ct. App. 1999). Upon revoking probation, the trial court may
impose one of several statutory sanctions, including ordering the defendant to execute all or
part of the sentence that was suspended at the time of sentencing. See Ind. Code § 35-38-2-
3(h). We review a trial court’s sentencing decisions for probation violations for an abuse of
discretion. Alford, 965 N.E.2d at 124. An abuse of discretion occurs when the decision is
clearly against the logic and effect of the facts and circumstances before the court. Id.Ballew admits that she violated several conditions of her probation. She challenges
only the trial court’s decision to revoke her probation and order her to execute four years of
her previously suspended sentence. The trial court found that Ballew had violated at least
five of the conditions of her probation. Indeed, Ballew was on probation for a drug-related
offense, and several of her violations involved drugs and/or her refusal to participate in drug
rehabilitation efforts. Her violations are evidence of her apparent determination to proceed
down a self-destructive path. Despite her insistence on appeal that she has since made great
4
efforts to improve her life, the record supports the trial court’s conclusion that incarceration,
rather than the home detention she now urges, is the best option. In short, Ballew’s behavior
indicates that she requires the constant supervision that incarceration provides. Accordingly,
we cannot say that the trial court’s decision to revoke Ballew’s probation and order her to
execute some of her previously suspended sentence is clearly against the logic and effect of
the facts and circumstances before the court. The trial court did not abuse its discretion.
Affirmed.
BARNES, J., and PYLE, J., concur.
5