Chealyn Colley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 10 2019, 6:36 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Chealyn Colley, January 10, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2290 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Sharp, Appellee-Plaintiff. Judge Trial Court Cause No. 69D01-1608-F6-160

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2290 | January 10, 2019 Page 1 of 5

Statement of the Case [1] Chealyn Colley appeals her sentence following the trial court’s revocation of

her probation. Colley presents a single issue for our review, namely, whether

the trial court abused its discretion when it ordered her to serve 730 days of her

previously suspended sentence in the Ripley County Jail. [2] We affirm.

Facts and Procedural History [3] In April 2017, Colley pleaded guilty to operating a vehicle while intoxicated, as

a Level 6 felony. In exchange for her plea, the State dismissed two charges,

namely, neglect of a dependent, as a Level 6 felony, and operating a vehicle

with a controlled substance in her body, a Class C misdemeanor. In May, the

trial court accepted Colley’s guilty plea and sentenced her to 910 days with 908

days suspended to probation. [4] On December 18, 2017, the State filed a petition for probation violation hearing

alleging that Colley had committed auto theft, as a Level 6 felony, and that she

had tested positive for methamphetamine and marijuana. On Colley’s motion,

the trial court delayed the factfinding hearing to permit Colley to undergo

inpatient treatment for substance abuse at Tara Treatment Center. Colley

completed that treatment on February 23, 2018. [5] On March 1, the State filed its second amended petition for probation violation

hearing alleging that, in addition to the allegations set out in the first petition,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2290 | January 10, 2019 Page 2 of 5

Colley had committed possession of paraphernalia. Thereafter, the State filed

additional amended petitions for probation violation hearings alleging that, in

addition to the allegations set out in the prior petitions, Colley had committed

possession of methamphetamine, as a Level 6 felony, and maintaining a

common nuisance, a Level 6 felony. [6] On August 22,1 the trial court held a hearing on the State’s petitions to revoke

Colley’s probation. At the hearing, Colley admitted only to the allegation that

she had committed auto theft, as a Level 6 felony, while on probation. The

court then revoked Colley’s probation and ordered her to serve 730 days of her

previously suspended sentence in the Ripley County Jail. This appeal ensued.

Discussion and Decision [7] Colley appeals the trial court’s order that she serve 730 days of her previously

suspended sentence. Probation is a matter of grace left to trial court discretion.

Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding that a

defendant has violated a condition of her 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) (2017). We review the trial court’s

sentencing decision following the revocation of probation for an abuse of

discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of

discretion occurs “only where the trial court’s decision is clearly against the

1 Colley failed to appear at a factfinding hearing scheduled on April 10.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2290 | January 10, 2019 Page 3 of 5

logic and effect of the facts and circumstances” before the court. Robinson v.

State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

trial court’s judgment to determine if there was substantial evidence of

probative value to support the court’s ruling. Id. [8] Here, Colley asserts that the trial court abused its discretion when it ordered her

to serve 730 days of her previously suspended sentence because her substance

abuse “had substantially contributed to her prior criminal conduct,” she had

stayed “sober and had ceased engaging in criminal behavior” for

“approximately eight months prior to her sentencing,” and she was making

progress in battling her substance abuse and maintaining a stable lifestyle.

Appellant’s Br. at 12. However, Colley’s contentions on appeal amount to a

request that we reweigh the evidence, which we cannot do. [9] The trial court’s judgment is supported by substantial evidence and was within

the court’s sound discretion. The trial court originally suspended all but two

days of Colley’s sentence. In December 2017, Colley committed auto theft, as a

Level 6 felony. That single violation is sufficient to support the revocation of

her probation. And while Colley’s efforts to overcome her substance abuse are

laudable, the court’s order that she serve 730 days of her suspended sentence is

supported by the record and well within the trial court’s discretion. We affirm

the court’s judgment.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2290 | January 10, 2019 Page 4 of 5 [10] Affirmed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2290 | January 10, 2019 Page 5 of 5