Mark S. Lea, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 21 2018, 6:30 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Stephen Miller Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark S. Lea, Jr., September 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1128 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Samuel R. Keirns, Appellee-Plaintiff Magistrate Trial Court Cause No. 02D06-1407-F4-5

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018 Page 1 of 6 [1] Mark Lea, Jr., appeals the revocation of his probation. He argues that the

evidence was insufficient to support the revocation and that the terms of his

probation required that he be given another chance before revocation. Finding

the evidence sufficient and no other error, we affirm.

Facts [2] On November 10, 2014, Lea pleaded guilty to Level 4 felony theft. Pursuant to

the plea agreement, Lea was sentenced to six years, with four of those years

suspended to probation. [3] On August 25, 2015, Lea was assigned to the reentry court community

transition program. The participation agreement for that program included

requirements regarding paying fees, obeying all laws, and maintaining good

behavior. On December 7, 2015, the trial court found that Lea had violated the

terms of his placement in the program by, among other things, providing a

diluted drug screen. The trial court ordered that Lea participate with substance

abuse treatment. In February 2016, Lea was placed on a zero tolerance policy

for attendance at the program. [4] On March 7, 2016, the State filed a petition to revoke Lea’s placement in the

program. The State alleged that Lea had failed to maintain good behavior by

committing three new offenses, including resisting law enforcement, operating a

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motor vehicle without a license, and unsafe lane movement without a signal. 1

The State also alleged that Lea had failed to report for a urine drug screen on

March 4, 2016, and had failed to pay fees as instructed. The petition recounted

a total of eighteen previous violations of the program. [5] On March 8, 2016, the trial court found that Lea had violated the terms and

conditions of the reentry court program, terminated his participation in that

program, and referred him to the probation department for further proceedings.

On March 10, 2016, the State filed a petition to revoke probation, based on the

new criminal charges and Lea’s termination from the reentry court program.

Later that same day, the State filed an amended revocation petition, adding that

Lea had provided a positive drug screen on March 1, 2016, failed to report for a

drug screen on March 4, 2016, and failed to pay required fees. [6] On July 1, 2016, Lea admitted to the allegations contained in the revocation

petition. On August 3, 2016, the trial court revoked a portion of Lea’s

suspended sentence, ordering him to serve two years with the Department of

Correction with the remainder suspended to probation. [7] On February 2, 2018, after Lea had again begun serving probation, the State

filed a petition to revoke. The State alleged that Lea had provided a positive

drug screen on January 2, 2018, and had failed to attend and complete required

counseling. On February 7, 2018, the State filed an amended petition to

1 The State eventually brought separate criminal charges against Lea for these offenses.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1128 | September 21, 2018 Page 3 of 6

revoke, adding an allegation that Lea had committed a new offense of carrying

a handgun without a license.2 [8] At the hearing on the petition to revoke, Lea admitted that he had provided a

positive drug screen. Additionally, a police officer testified regarding the

circumstances surrounding the handgun allegations. The trial court found that

Lea had violated the terms and conditions of probation by providing a positive

drug screen and failing to maintain good behavior. The trial court revoked his

probation and ordered that Lea serve the two-year balance of his previously-

suspended sentence in the Department of Correction. Lea now appeals.

Discussion and Decision [9] Lea argues that the trial court erroneously revoked his probation because the

evidence was insufficient and the terms of his probation agreement required

that he be given another chance. [10] It is well settled that probation is a matter of grace left to the trial court’s

discretion rather than a right to which a defendant is entitled. E.g., Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the terms

and conditions of probation, and the trial court may revoke probation if the

terms and conditions are violated. E.g., Castillo v. State, 67 N.E.3d 661, 663-64

(Ind. Ct. App. 2017), trans. denied. A trial court may revoke a defendant’s

2 It is unclear from the record whether the State filed a criminal charge based on these allegations.

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probation for violation of a single condition of his probation. E.g., Pierce v.

State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). [11] Lea focuses much of his argument on the evidence related to the handgun

allegations. We need not consider this issue, however, as Lea admitted that he

tested positive for marijuana while on probation. Tr. p. 9-10. One of the

conditions of Lea’s probation was that he not use drugs. Id. at 8; Tr. Ex. 1.

Because Lea violated this single condition of probation, the trial court was

within its rights to revoke probation. Consequently, any alleged error regarding

the handgun allegations was harmless.3 [12] Lea also contends that the State and Lea entered into an agreement providing

that if Lea used controlled substances, additional conditions may be placed on

him rather than revoking his probation. Specifically, he directs our attention to

a document that he signed following the January 2, 2018, positive drug screen,

which provided as follows:

I understand that due to continued drug use, I may be subject to added conditions of Allen County Adult Probation and referred back to court.

Failure to follow through the added conditions of probation[] will result in the case being returned to court for further disposition.

3 Lea argues that the admission of evidence related to the handgun allegations was fundamental error. We disagree and maintain our conclusion that any error was harmless.

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Tr. Ex. 2 (emphasis added). Initially, we note that the plain language of this

provision does not establish that the only consequence for the positive drug

screen would be added probation conditions. Instead, it provides that probation

conditions may be added, and if those added conditions were violated, Lea

could be referred back to the trial court. Nowhere does it say that the probation

department was prohibited from seeking revocation or that the trial court was

prohibited from entering an order to that effect. [13] Moreover, Lea had provided an earlier diluted screen in December 2015.

Following that screen, he was, in fact, subject to an additional probation

condition—he was ordered to begin attending substance abuse treatment.

Quickly thereafter, he provided a positive screen in March 2016. In other

words, although Lea complains that he was not given a “second chance,”

appellant’s br. p.10, he has, in fact, been given multiple chances, as well as

additional treatment to help him refrain from use of illegal drugs. He has not

taken advantage of these opportunities. Under these circumstances, we find

that the trial court did not err by revoking probation based on Lea’s most

current positive drug screen. [14] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

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