William S. Matherly v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 24 2017, 10:07 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William S. Matherly, May 24, 2017 Appellant-Defendant, Court of Appeals Case No. 84A04-1701-CR-198 v. Appeal from the Vigo County Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause No. 84D01-1209-FC-2974 84D01-1207-FB-2176

May, Judge. Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017 Page 1 of 6 [1] William S. Matherly appeals the trial court’s order, following revocation of his

probation, that Matherly serve the remainder of his sentence in the Department

of Correction (“DOC”). We affirm.

Facts and Procedural History [2] In 2012, under two different cause numbers, Matherly was charged with Class

B felony unlawful possession of a firearm by a serious violent felon, 1 Class C

felony possession of an altered handgun, 2 and Class C felony burglary. 3

Pursuant to a plea agreement, he pled guilty to possession of an altered

handgun in one cause and burglary in the other cause. He was sentenced to

four years on the possession charge with “[t]wo (2) years of said sentence . . .

executed on Work Release.” (App. Vol. 2 at 63.) He was also sentenced to a

consecutive six-year sentence for the burglary charge. “Two (2) years of said

sentence [to] be executed on Work Release . . . and four (4) years . . .

suspended. [Matherly wa]s placed on formal probation for four (4) years.” (Id.

at 64.) [3] In 2015, the State filed a petition to revoke probation alleging Matherly had

failed drug screens for methamphetamine and marijuana. The trial court

ordered Matherly be “returned to probation pursuant to the original terms and

1 Ind. Code § 35-47-4-5 (2012). 2 Ind. Code § 35-47-2-18 (1983) and Ind. Code § 35-47-2-23 (1997). 3 Ind. Code § 35-43-2-1 (1999).

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conditions [and to] enter Freebirds Solutions, Inc. . . . until he is successfully

discharged[.]” (Id. at 87-88.) However, on October 20, 2016, the State filed

another petition to revoke in which it asserted Matherly had been arrested for

two new charges and tested positive for marijuana and methamphetamine. (Id.

at 91.) Matherly admitted the violations, but the State and Matherly could not

agree as to the sanction. [4] At the hearing on that petition, Matherly’s probation officer, Amber

Lowdermilk, stated Matherly “does well with structure,” (Tr. at 15), but noted

when she referred Matherly for outpatient alcohol and drug counseling, she did

not “believe that was ever followed up on.” (Id. at 13.) “[G]iven [Matherly’s]

prior violations and issues with the probation,” Lowdermilk did not believe he

would “be successful on probation [and] the only option [she] would think of

[as a viable alternative] is in-patient or DOC.” (Id.) [5] Matherly and his wife testified that his wife was homeless, disabled, and

depended on him for care. Matherly also testified that he was currently

unemployed due to the arrest underlying the probation violation, but he “was

going to be hired [at Burger King in Brazil, Indiana] right before he was

arrested.” (Id. at 18.) Matherly said his wife had checked with the manager at

Burger King and “[the manager] said that she would still give [him] a chance.”

(Id.) Matherly admitted he had addiction issues and requested “to be placed in

the Jail Linkage Program and [given] another chance at a Sober Living

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environment.” (Id. at 21.) The trial court ordered Matherly to serve the

remainder of his sentence for the burglary conviction at the DOC. 4

Discussion and Decision [6] Matherly asserts the trial court abused its discretion in ordering him to serve the

remainder of his sentence in the DOC when it is an undue hardship for his

disabled wife, he suffers from substance abuse addiction, and there is a “less

restrictive and more reasonable alternative available.” (Appellant’s Br. at 8.)

The alternative to which he points is Vigo County’s Jail Linkage program. [7] Matherly admitted his violation, and “proof of a single violation of the

conditions of probation is sufficient to support the decision to revoke

probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g

denied, trans. denied. On finding a defendant violated his probation, the trial

court may “[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(h)(3). We affirm the

sanction imposed by a trial court following a probation violation unless the trial

court abused its discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

“An abuse of discretion occurs where the decision is clearly against the logic

and effect of the facts and circumstances.” Id. When reviewing the decision,

we consider only the evidence most favorable to the judgment without assessing

4 The State and Matherly agreed the sentence for the possession of the altered handgun had been completed.

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the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005). [8] Matherly had a previous probation violation, for which the trial court allowed

him to remain on probation and to seek treatment for his addiction issues.

However, Matherly again tested positive for marijuana and methamphetamine

in 2016. Following testimony from his probation officer, himself, and his wife,

the trial court ordered Matherly to serve the remainder of his sentence in the

DOC. The trial court had given Matherly a chance to take advantage of

addiction counseling but he continued to use drugs and commit other crimes.

Even if we assume, for the sake of argument, Matherly could help his wife if he

were not in the DOC, we cannot find an abuse of discretion in the trial court’s

order for him to serve the remainder of his sentence in the DOC as Matherly

had squandered opportunities given to him by the trial court. See Cox v. State,

850 N.E.2d 485, 491 (Ind. Ct. App. 2006) (no abuse of discretion when court

ordered Cox to serve the remainder of his suspended sentence after failing to

comply with substance abuse recommendations and being arrested for

subsequent crimes).

Conclusion [9] Matherly has not demonstrated the trial court abused its discretion in ordering

execution of the remainder of his sentence in the DOC. Accordingly, we

affirm.

Court of Appeals of Indiana | Memorandum Decision 84A04-1701-CR-198 | May 24, 2017 Page 5 of 6 [10] Affirmed.

Brown, J., and Pyle, J., concur.

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