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

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. Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016 Page 1 of 4 [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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