Regina A. Beard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 24 2019, 7:48 am
regarded as precedent or cited before any
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
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Regina A. Beard, June 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2400
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Darrell M. Auxier,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
69C01-1209-FB-24
Mathias, Judge.
[1] Regina Beard (“Beard”) appeals the Ripley Superior Court’s revocation of her
probation, arguing the trial court abused its discretion when it ordered her to
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serve four years of the balance of her previously suspended sentence in the
Department of Correction (“DOC”).
[2] We affirm.
Facts and Procedural History
[3] In March of 2014, Beard pleaded guilty to Class B felony conspiracy to
manufacture methamphetamine. She was ordered to serve eleven years in the
DOC with eight years suspended to probation. After serving her executed time,
Beard began probation on November 25, 2015. Less than one year later, the
State filed a petition to revoke her probation after she tested positive for
amphetamine and methamphetamine on October 17, 2016. Appellant’s App. p.
78. Beard again tested positive for amphetamine and methamphetamine in
February 2017. Id. at 86. She admitted she had violated her probation, and the
court revoked one year of her previously suspended eight-year sentence on June
2, 2017. Id. at 91.
[4] Beard was released on probation on September 14, 2017. She agreed to
participate in Moral Reconation Therapy (“MRT”) and signed an agreement
that her probation could be revoked if she missed two MRT sessions without
excuse. Id. at 95. She immediately missed MRT sessions on October 5 and 10,
2017. Beard met with a probation officer on October 17, who informed her that
her probation would likely be revoked due to her two unexplained absences
from her MRT sessions. Tr. p. 7. Beard then failed to attend a third MRT
session that same day and failed to check in with her probation officer for six
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months. Id. An arrest warrant was issued on October 30, 2017. Appellant’s
App. pp. 9, 98.
[5] Beard admitted to violating her probation on August 7, 2018. Tr. p. 4. The trial
court revoked four years of the balance of her previously suspended sentence
and recommended a Therapeutic Community and Purposeful Incarceration. Id.
at 10; Appellant’s App. p. 100 The trial court indicated it would modify Beard’s
sentence if she successfully completed the Purposeful Incarceration program
without conduct violations. Tr. p. 10. Beard now appeals.
Discussion
[6] Probation is a matter of grace left to the trial court’s discretion, not a right to
which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188
(Ind. 2007). The trial court determines the conditions of probation and may
revoke probation if the probationer violates the conditions. Id. Beard admitted
she violated her probation. Therefore, the trial court had the option of imposing
one of the following sanctions: (1) continue Beard on probation, with or
without modifying or enlarging the conditions; (2) extend her probationary
period for not more than one year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. See Ind. Code § 35-38-2-3(h).
[7] A trial court’s sentencing decisions are reviewed according to the abuse of
discretion standard. Prewitt, 878 N.E.2d at 185. An abuse of discretion occurs if
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the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. at 188.
[8] Beard argues the trial court abused its discretion when it ordered her to serve
four years of her previously suspended sentence in the DOC. Beard argues in-
home monitoring is sufficient to ensure her attendance at MRT sessions, and
that if incarceration is appropriate, a sentence between one and four years is
more appropriate because missing MRT sessions is a less egregious violation
than the use of drugs or a new criminal offense. Tr. p. 8; Appellant’s Br. at 10.
[9] It is well within the trial court’s discretion to revoke Beard’s probation and
order her to execute a portion of her sentence. See I.C. § 35-38-2-3(h)(3). A
court may revoke probation after a single violation; this is Beard’s second.
Beard tested positive for drug use less than a year into her probation and tested
positive again three months later. Beard then violated her probation by failing
to report to MRT sessions a mere six weeks after she was released from
incarceration after her first probation violation. She also failed to report to her
probation officer for six months because she did not want to “face the music.”
Tr. p. 7. Beard has shown that less restrictive monitoring is insufficient to
ensure her compliance. The court’s decision to revoke four years of the balance
of Beard’s previously suspended sentence is not an unwarranted response to the
violations she committed, especially given the court’s willingness to consider a
modification to her sentence upon completion of the Purposeful Incarceration
program.
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Conclusion
[10] For all of these reasons, we conclude that the trial court acted within its
discretion when it revoked Beard’s probation and ordered her to serve four
years of her previously suspended sentence in the DOC.
[11] Affirmed.
May, J., and Brown, J., concur.
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