Pursuant to Ind. Appellate Rule 65(D), 

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:

ELLEN M. O’CONNOR GREGORY F. ZOELLER

Deputy Public Defender Attorney General of Indiana

Indianapolis, Indiana

KATHERINE MODESITT COOPER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENNETH HORTON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1212-CR-1036

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Lisa F. Borges, Judge 

Cause No. 49G04-0710-FA-210335

July 16, 2013

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Kenneth Horton (“Horton”) appeals the trial court’s order revoking his probation 

and imposing the suspended portion of his sentence for a Class B felony rape conviction. 

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 15, 2008, Horton pleaded guilty to an amended charge of rape1as a 

Class B felony, in exchange for the State dismissing charges of criminal confinement2as 

a Class B felony and strangulation3as a Class D felony.

4

 Pursuant to the terms of the plea 

agreement, Horton was sentenced to eighteen years, of which twelve years were ordered

executed at the Department of Correction (“DOC”), and six years were suspended to 

probation.

After being released from the DOC, Horton was allowed to live at the Amnesty 

Oasis Center, which helps the homeless with stability and addiction issues. Five months 

later, the State filed a Notice of Probation Violation citing the following events. On 

October 19, 2012, Horton failed to report to his probation officer and failed to provide his 

required urine drug test. Appellant’s App. at 161. Horton’s October 23, 2012 drug screen 

tested positive for cocaine. Id. The probation officer called Horton to report the results. 

Although Horton denied any drug use, he admitted that he had been in a room with other 

people who were using cocaine and that he drove with friends to purchase cocaine. Id. 

 

1

See Ind. Code § 35-42-4-1.

2

See Ind. Code § 35-42-3-3.

3

See Ind. Code § 35-42-2-9.

4 Horton’s original information charged the rape count as a Class A felony on the basis that 

Horton was “armed with a deadly weapon,” i.e., a hammer. Appellant’s App. at 39.
3

The probation officer ordered Horton to submit to another test on October 25, 2012, but 

Horton said that the test would likely be positive again. Id. Horton failed to submit the 

second drug test. 

The Notice of Probation Violation was filed on October 26, 2012. On that same 

date, Horton left four voicemail messages with his probation officer in which he advised: 

(1) he did not have money for the drug test; (2) he had “made a mistake out of depression 

and cannot go back to prison”; (3) he would try to place himself into a psychiatric ward, 

but refuses to go back to prison; and (4) he would kill himself. Id. at 162. The probation 

officer alerted the trial court regarding her concern about Horton because he identified 

cocaine use as a trigger to reoffend, and the officer was unsure of Horton’s actions in 

light of his suicidal thoughts and failed drug test. Id. The probation officer reported that, 

around that same time, Horton was attending Substance Abuse Treatment and Sex 

Offender Treatment with Broad Ripple Counseling Center, he was current with the Sex 

Offender Registry, and he owed $2,960.00 in fees but had only paid $100.00. Id.

During his probation revocation hearing, Horton admitted that: (1) he failed to 

submit a urine test as requested on October 19 and October 25, 2012; (2) he had 

submitted a urine drug screen on October 23, 2012 that tested positive for the presence of 

cocaine; and (3) he failed to report to probation as ordered. Tr. at 3-4. As background,

Horton told the court that he previously took medication for Bipolar II disorder, was 

depressed, had lost his job, was behind on paying his probation fees, had dropped out of 

Ivy Tech, and was living with his fiancée. Id. at 4-5, 7. 

The State noted that Horton’s underlying offense “involve[d] cocaine,” and that 
4

“[i]t’s also been identified that a major trigger for Mr. Horton to reoffend is cocaine.” Id.

at 6. At the close of the hearing, the trial court stated:

I’m sympathetic to the issues, but I’ve reviewed the pre-sentence report and 

I’m familiar as well with the Defendant’s background. Cocaine is – been a 

problem for the Defendant over the years and is a trigger for a lot of his 

criminal behavior and background and I’m unwilling to take a chance. So I 

am going to find the Defendant in violation. I’m going to revoke your 

placement on probation and order that you serve the remainder of your 

sentence at the Department of Corrections [sic]. I find you indigent to any 

remaining fees.

Id. at 8. At Horton’s request, the trial court also made a recommendation that Horton 

receive mental health evaluation and treatment. Id. at 9. Horton now appeals the 

propriety of the trial court’s sanction following his probation revocation. 

DISCUSSION AND DECISION

The trial court determines the conditions of probation and may revoke probation if 

those conditions are violated. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). 

Id. “The decision to revoke probation is within the sound discretion of the trial court.

And its decision is reviewed on appeal for abuse of that discretion.” Id. An abuse of 

discretion occurs when the decision is clearly against the logic and effect of the facts and 

circumstances before the court. Further, on appeal, the reviewing court considers only 

the evidence most favorable to the judgment without reweighing that evidence or judging 

the credibility of the witnesses. Id. If there is substantial evidence of probative value to 

support the trial court’s decision that a defendant has violated any terms of probation, the 

reviewing court will affirm its decision to revoke probation. Id. 
5

“Probation is a criminal sanction wherein a convicted defendant specifically 

agrees to accept conditions upon his behavior in lieu of imprisonment.” Abernathy v. 

State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). “These restrictions are designed to 

ensure that the probation serves as a period of genuine rehabilitation and that the public is 

not harmed by a probationer living within the community.” Id. “As we have noted on 

numerous occasions, a defendant is not entitled to serve a sentence in a probation 

program; rather, such placement is a ‘matter of grace’ and a ‘conditional liberty that is a 

favor, not a right.’” Id. (citing Strowmatt v. State, 779 N.E.2d 971, 976 (Ind. Ct. App.

2002)). 

Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640 

(Ind. 2008). Generally speaking, as long as the trial court follows the procedures outlined 

in Indiana Code section 35-38-2-3, the trial court may properly order execution of a 

suspended sentence. Id. (citing Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct. App. 

2000), trans. denied). First, the court must make a factual determination that a violation 

of a condition of probation actually occurred. Ind. Code § 35-38-2-3(a)(1). If the trial 

court finds a violation of a condition of probation, the court may impose one of the 

following sanctions on the person: (1) continue probation, with or without modifying or 

enlarging the conditions; (2) extend the 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. Ind. Code § 35-38-2-3(h).

Horton admits that he violated his probation when he failed to report, failed to 

submit urine tests, and tested positive on his drug screen; therefore, Horton does not 
6

contest the first step of the process. Appellant’s Br. at 6. Instead, maintaining that the 

trial court should have ordered a continuation of probation with counseling, therapy and 

appropriate medication, Horton argues that the trial court abused its discretion “in 

revoking all of his six years of suspended time and sentencing him to the [DOC].” Id. 

We disagree. 

The trial court correctly observed that Horton had a long history of abusing 

cocaine and that the drug seemed to trigger his criminal behavior. Tr. at 8. Horton 

concedes that he “struggled for years with cocaine addiction.” Appellant’s Br. at 9. The 

probable cause affidavit shows that Horton consumed crack cocaine on the date he 

committed the rape that was the underlying offense in this case. Appellant’s App. at 36. 

Furthermore, participation in substance abuse treatment while on probation did not deter 

him from drug use. Appellant’s App. at 162. 

Horton was initially charged with having committed Class A felony rape, Class B 

felony confinement, and Class D felony strangulation on October 3, 2007. On October 

15, 2008, Horton pleaded guilty to one count of Class B felony rape. Accordingly, 

Horton received the benefit of not only a reduced charge from the Class A felony rape, 

but also the dismissal of two additional felony charges. Although Horton had a 

significant criminal history, pursuant to his plea agreement, he was sentenced to eighteen 

years, six of which were suspended to probation. Less than five months after starting 

probation, Horton had missed appointments with his probation officer, failed on two 

occasions to submit requested drug screens, and tested positive for cocaine—a drug that 

“is a trigger for a lot of his criminal behavior.” Tr. at 8. While not charged, Horton’s 
7

admissions that he had been in a room with people who were using cocaine and drove 

with friends to purchase cocaine was evidence that he violated Condition 8 of his 

probation—that he “not associate with any person who is in violation of the law.” 

Appellant’s App. at 100, 161. 

While “sympathetic to the issues,” the trial court reviewed the pre-sentence report,

was familiar with Horton’s background, and ordered him to serve his six-year suspended 

sentence. Tr. at 8. We conclude the trial court did not abuse its discretion by ordering 

Horton to serve his six-year suspended sentence. Accordingly, we affirm the trial court’s 

revocation of Horton’s probation.

Affirmed.

VAIDIK, J., and PYLE, J., concur.