Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 1 of 20

MEMORANDUM DECISION

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

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead 

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Taylor Marshall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 6, 2020

Court of Appeals Case No.

19A-CR-2471

Appeal from the 

Fayette Circuit Court

The Honorable 

Hubert Branstetter, Jr., Judge

Trial Court Cause No.

21C01-1610-F3-771

Barteau, Senior Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 2 of 20

Statement of the Case

[1] Taylor Marshall appeals the trial court’s order revoking her probation and 

ordering her to serve the entirety of her previously-suspended sentence. We 

affirm.

Issues

[2] Marshall raises three issues for our review, which we restate and expand as 

follows: 

I. Whether the trial court committed fundamental error in 

admitting certain hearsay evidence; 

II. Whether Marshall’s right to due process was violated when 

the trial court admitted certain hearsay evidence; 

III. Whether sufficient evidence supports the trial court’s finding 

that Marshall violated the terms of her probation; and 

IV. Whether the trial court abused its discretion by ordering 

Marshall to serve the entirety of her previously-suspended 

sentence in the Indiana Department of Correction (DOC).

Facts and Procedural History

[3] On October 26, 2016, the State charged Marshall with dealing in a narcotic 

drug and conspiracy to commit dealing in a narcotic drug, both as Level 3 

felonies. On February 13, 2017, under terms of a plea agreement, Marshall 

agreed to plead guilty to dealing in a look-a-like substance as a Level 5 felony, 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 3 of 20

and, in exchange, the conspiracy charge would be dismissed. The trial court 

accepted the plea agreement and entered judgment of conviction consistent 

with the terms of the plea agreement on March 24, 2017. Marshall was 

sentenced to six years executed in the DOC to be served in the Purposeful 

Incarceration program.

[4] On October 5, 2018, Marshall filed a motion to amend the sentencing order to 

remove the purposeful incarceration requirement because she had been placed 

on a long waiting list for that program and could not participate in other 

programs while on the waiting list. On November 21, 2018, the State and 

Marshall entered into an Agreed Sentence Modification, and Marshall’s 

sentence was subsequently modified. She was immediately released from 

incarceration to the House of Ruth program, and the three years remaining on 

her original six-year sentence was ordered served on probation, with the 

completion of the House of Ruth program a condition of probation. 

[5] Marshall performed well in the House of Ruth program, completing an 

eighteen-month program in six months. However, on July 23, 2019, Marshall 

overdosed on drugs and had to be resuscitated at Reid Hospital with the drug 

Narcan. The following day, Marshall’s probation officer, Charles Whallon,

filed a Petition for Probation Violation Hearing, alleging that, when Marshall 

overdosed, she violated Rule #10 of the terms of her probation, which stated 

that “The defendant shall not use alcohol or illegal drugs[.]” Appellant’s App. 

Vol. II, p. 58. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 4 of 20

[6] At some point, Officer Whallon learned from “other officers” that, on 

September 14, 2019, Marshall had visited the police department and requested 

that the police search her vehicle because Marshall believed that “bugs” or 

listening devices had been planted inside. Tr. pp. 11-12. 

[7] Marshall met with Officer Whallon at least four times after she overdosed. At 

each meeting, she admitted that she continued to use methamphetamine. In 

response to the admissions, Officer Whallon arranged for Marshall to attend inpatient drug treatment at a facility in Richmond, Indiana, but Marshall failed to 

show for the first appointment that was set for September 16, 2019. Marshall 

did appear at the facility on September 20, 2019, for an intake appointment, but

she left the facility after refusing to sign required paperwork. 

[8] Marshall’s probation revocation hearing took place on September 23, 2019. On 

that day, prior to the start of the hearing, a sheriff’s deputy contacted Officer 

Whallon to tell him that Marshall was at a certain address and that she was 

behaving as if she were under the influence of drugs. Officer Whallon went to 

the address provided by the deputy and met with Marshall. He noticed that her 

behavior was “erratic” and “delusion[al].” Id. at 12. She told Officer Whallon 

that she had used drugs fifteen hours earlier. Based on the admission, 

probation officer Lindsey Tandy conducted a drug screen of Marshall just prior 

to the start of the revocation hearing. Marshall tested positive for 

methamphetamine, amphetamines, MDMA, and fentanyl. The results of the 

drug screen were initial results that had not yet been sent to a laboratory for 

confirmatory testing. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 5 of 20

[9] At the revocation hearing, the trial court allowed over Marshall’s objection 

Officer Whallon’s testimony regarding statements that Marshall made to him—

specifically, the statements about her drug use and the incident where the police 

searched her vehicle for listening devices. The trial court also allowed over 

Marshall’s objection Officer Tandy’s testimony regarding the results of the drug 

screen that was administered immediately prior to the start of the revocation 

hearing. The State did not introduce into evidence any printed documentation 

of the failed drug screen. 

[10] At the hearing, the State argued that Marshall’s probation should be revoked 

and that she should be directed to serve her previously-suspended three-year

sentence in the DOC. Marshall argued that she should be allowed to 

participate in inpatient treatment and that her probation should be continued.

[11] At the conclusion of the hearing, the trial court determined that Marshall 

violated the terms of her probation, revoked her probation, and ordered her to 

serve in the DOC the remaining three years of her previously-suspended 

sentence. Marshall appeals. 

Discussion and Decision

I. Standard of Review

[12] Marshall challenges the trial court’s revocation of her probation. Our general 

standard of review in such cases is well-established. Probation is a favor 

granted by the State, not a right to which a defendant is entitled. Butler v. State,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 6 of 20

951 N.E.2d 255, 259 (Ind. Ct. App. 2011). Though a defendant is entitled to

due process in a probation revocation proceeding, he is not entitled to all the 

rights he enjoyed before the underlying criminal conviction, such as the 

applicability of the rules of evidence or an elevated burden of proof. Id. A 

defendant is, however, entitled to certain due process protections, including the 

right to confront witnesses, right to cross-examine witnesses, and right to 

representation of counsel. Ind. Code § 35-38-2-3(f) (2015); Butler, 951 N.E.2d at 

259. There must also be substantial evidence of probative value from which the 

trial court could determine based upon a preponderance of the evidence that the 

defendant violated the terms of his probation. Figures v. State, 920 N.E.2d 267, 

272 (Ind. Ct. App. 2010).

II. Hearsay Evidence

[13] Marshall contends that the trial court erroneously admitted into evidence 

certain hearsay evidence, namely, Officer Whallon’s testimony regarding the 

search of Marshall’s vehicle and Officer Tandy’s testimony regarding the results 

of Marshall’s drug screen. Marshall claims that the testimony constituted

inadmissible hearsay which does not pass the substantial trustworthiness test. 

[14] Marshall concedes that she did not object to the testimony on grounds that it 

lacked substantial trustworthiness and states that the fundamental error doctrine 

applies. The fundamental error doctrine is extremely narrow and applies only 

when the error amounts to a blatant violation of basic principles, the harm or 

potential for harm is substantial, and the resulting error denies the defendant 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 7 of 20

fundamental due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 

2010), trans. denied. And, even where an error in the admission of evidence has 

been made—whether or not sufficient objection was raised to its admission—

we will not reverse the trial court where the error was harmless. Ind. Trial Rule 

61. 

[15] “The due process right applicable in probation revocation hearings allows for 

procedures that are more flexible than in criminal prosecution.” Reyes v. State,

868 N.E.2d 438, 440 (Ind. 2007) (citing, inter alia, Morrissey v. Brewer, 408 U.S. 

471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). Thus, evidence may be 

deemed admissible for the purposes of probation revocation proceedings that 

would not be admissible during a criminal trial. Id.; see also Ind. Evidence Rule 

101(d)(2) (providing that, except for rules concerning privilege, the Rules of 

Evidence do not apply in numerous criminal-related proceedings, including 

those dealing with probation revocation).

[16] As our supreme court noted, however, “[t]his does not mean that hearsay 

evidence may be admitted willy-nilly[.]” Reyes, 868 N.E.2d at 440. Because the 

right to confront accusers still applies to defendants in probation revocation 

proceedings, albeit in a less stringent form than in a criminal trial, we apply the 

“substantial trustworthiness” test to determine whether hearsay evidence is 

admissible during a probation revocation hearing. Id. at 441. The substantial 

trustworthiness test requires that the State demonstrate “good cause” for using 

hearsay rather than live testimony during a probation revocation proceeding. 

Robinson v. State, 955 N.E.2d 228, 232 (Ind. Ct. App. 2011). The good cause 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 8 of 20

requirement is met so long as the hearsay bears substantial guarantees of 

trustworthiness. Id. In reaching such a determination, the trial court must 

“evaluate the reliability of the hearsay evidence” and, ideally, “explain on the 

record why the hearsay is reliable and why that reliability is substantial enough 

to supply good cause for not producing live witnesses.” Id. (citing Reyes, 868 

N.E.2d at 441-42). Failure to provide an explanation on the record is not fatal 

where the record supports such a determination. See Reyes, 868 N.E.2d at 442

(affirming trial court’s admission of affidavits in probation revocation despite 

the court’s failure to provide detailed explanation on record because evidence 

supported substantial trustworthiness of affidavits).

[17] In this case, Marshall’s failure to object to the testimony in question on grounds 

that it lacked substantial trustworthiness deprived the trial court of the 

opportunity to make a substantial trustworthiness determination. As such, on 

appeal, Marshall must not only demonstrate that the hearsay testimony of 

Officers Whallon and Tandy was not substantially trustworthy, but also that 

Marshall was so prejudiced by its admission into evidence that this denied her

fundamental due process protections. Marshall cannot satisfy her burden. 

[18] Regarding Officer Whallon’s testimony—that Marshall drove to a police station 

and asked the officers to search her vehicle for listening devices—Marshall 

maintains that said testimony is not substantially trustworthy because “[Officer] 

Whallon never identified the officers from whom he obtained the information 

regarding the September 14th incident, the department with which the officers 

served, the basis for those unnamed officers’ suspicions, or anything else which 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 9 of 20

would render the officers’ statements substantially trustworthy.” Appellant’s 

Br. p. 13. However, even if we were to determine that Officer Whallon’s 

testimony was not substantially trustworthy, we cannot say that the testimony 

amounted to fundamental error because Marshall has not shown any harm 

resulting from the testimony and has failed to demonstrate that the testimony 

prejudiced her substantial rights. 

[19] We now turn to Officer Tandy’s testimony regarding the results of Marshall’s 

drug screen. Marshall’s challenge to the trustworthiness of the testimony is as 

follows: “the test had not yet been submitted to a laboratory for analysis by an 

expert[;]” “[Officer] Tandy did not know the accuracy rate of the preliminary 

results or whether such results ever produced false positives[;]” she “did not 

detail her experience with such tests” and did not testify to any “specialized 

training in analyzing urine [drug] test results[;]” the State “offered no other 

evidence establishing the reliability of the testing or [Officer] Tandy’s skill in 

reading the results[;]” and the manufacturer of the test was not identified. 

Appellant’s Br. pp. 13-14. Despite these assertions, we find that the evidence 

presented at the revocation hearing supports a determination that the testimony 

offered by Officer Tandy was substantially trustworthy.

[20] First, Officer Whallon testified, without objection from Marshall, that on the 

day of Marshall’s probation revocation hearing and prior to the start of the 

hearing, he spoke with Marshall; her behavior seemed “erratic” and 

“delusion[al;]” and she admitted to him that she had used methamphetamine

“fifteen hours prior.” Tr. p. 12. Next, Officer Tandy testified that, shortly 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 10 of 20

before the start of the probation revocation hearing, she performed a drug 

screen on Marshall. Officer Tandy further testified that she followed the 

“normal protocol” for “obtaining the urine sample[,]” and she described how 

she administered the test as follows: “We went into the restroom. . . . 

[Marshall] washed her hands beforehand . . . [. I] observed her screen in the 

cup, read the temperature[;] . . . it was valid and then waited at least two 

minutes and then read the results.” Id. at 17. Officer Tandy then told the trial 

court that Marshall tested positive for “[methamphetamine, amphetamines, 

MDMA and fentanyl.” Id. at 18. We, therefore, find that the record supports a 

determination that Officer Tandy’s testimony regarding Marshall’s positive 

drug screen results was substantially trustworthy, and we conclude that the trial 

court did not abuse its discretion when it allowed the officer’s testimony. 

Moreover, even assuming, arguendo, that the court did abuse its discretion in 

admitting the testimony, we cannot say that the testimony amounted to 

fundamental error because, as with Officer Whallon’s testimony, Marshall has 

not shown any harm resulting from Officer Tandy’s testimony and has failed to 

demonstrate that the testimony prejudiced her substantial rights. 

III. Due Process Rights

[21] Next, Marshall contends that the trial court abused its discretion by allowing

into evidence the probation officers’ respective hearsay testimony because, 

according to Marshall, the testimony resulted in a violation of her rights to due 

process. Specifically, Marshall argues that she was denied her due process 

rights to adequately confront and cross-examine (1) the police officers who told 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 11 of 20

Officer Whallon that Marshall asked them to search her vehicle, and (2) Officer 

Tandy regarding the officer’s testimony about the positive drug screen.

Marshall further argues that the State failed to provide her with notice that it 

intended to offer into evidence Marshall’s request for the search and the results 

of the drug screen. We take each argument in turn. 

[22] “Although probationers are not entitled to the full array of constitutional rights 

afforded defendants at trial, ‘the Due Process Clause of the Fourteenth 

Amendment [does] impose [ ] procedural and substantive limits on the 

revocation of the conditional liberty created by probation.’” Debro v. State, 821 

N.E.2d 367, 374 (Ind. 2005) (citing Cox v. State, 706 N.E.2d 547, 549 (Ind. 

1999) (citing Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 

636 (1985))). The minimum requirements of due process that inure to a

probationer at a revocation hearing include: “(a) written notice of the claimed 

violations of probation; (b) disclosure of the evidence against him; (c) an 

opportunity to be heard and present evidence; (d) the right to confront and 

cross-examine adverse witnesses . . . .” Woods v. State, 892 N.E.2d 637, 640 

(Ind. 2008); see also Ind. Code § 35-38-2-3(f) (providing in pertinent part that a 

probationer “is entitled to confrontation, cross-examination, and representation 

by counsel”).

[23] “Nonetheless, confrontation rights in the context of probation revocation are 

not as extensive as they are in criminal trials.” Knecht v. State, 85 N.E.3d 829, 

833 (Ind. Ct. App. 2017). Indiana Evidence Rule 101(d)(2) allows for the 

admission of evidence during probation revocation hearings that would not be 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 12 of 20

permitted in a full-blown criminal trial. We also observe that our supreme 

court has noted that the United States Supreme Court’s decision on the Sixth 

Amendment right to confrontation in criminal trials, Crawford v. Washington, 

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d. 177 (2004), is not implicated in 

probation revocation hearings because probation revocation hearings are not 

criminal trials. Reyes, 868 N.E.2d at 440 n.1.

A. Confrontation and Cross-Examination of the Police Officers

[24] Marshall argues that she was denied her due process rights to confront and 

cross-examine the police officers who searched her vehicle. However, we 

already have determined that Marshall failed to demonstrate that Officer 

Whallon’s testimony regarding the incident prejudiced her substantial rights. 

Thus, we decline to find that Marshall was denied her right to confront and 

cross-examine the police officers.

B. Confrontation and Cross-Examination of Officer Tandy

[25] As for Marshall’s argument that she was denied her right to confront and crossexamine Officer Tandy regarding the results of the drug screen, to the contrary, 

the record establishes that Marshall was able to confront and cross-examine 

Officer Tandy. Specifically, Marshall questioned her as to any training she 

received in how to administer and read the results of the urine drug screen, the 

accuracy of the results, and whether the screen had ever produced false

positives. Thus, Marshall was not denied her due process rights to confront and 

cross-examine Officer Tandy.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 13 of 20

C. Disclosure of Evidence

[26] Marshall further argues that the trial court violated her right to due process 

when it allowed the State to use evidence against her (i.e., the probation 

officers’ respective testimony in question) even though that evidence was not 

provided to Marshall prior to the start of the probation revocation hearing. 

While we agree that Marshall was not informed of the evidence in question 

prior to the start of the probation revocation hearing, we conclude that, 

altogether, Marshall had notice that her drug use would be an issue at her 

probation revocation hearing. 

[27] As to the evidence regarding the search of Marshall’s vehicle, we note that it is 

unclear from the record the significance of the evidence and how the evidence 

factored into the determination that Marshall violated her probation. 

Regarding the evidence of the drug screen result, the record reveals that on July 

23, 2019, Marshall was admitted to the hospital for a drug overdose and was 

administered a drug to resuscitate her. At each of four meetings between 

Marshall and Officer Whallon that occurred after her overdose, Marshall told 

Officer Whallon that she continued to use methamphetamine. On the day of 

her probation revocation hearing, she met with Officer Whallon and admitted 

to him that she had used methamphetamine in the last fifteen hours. Prior to 

the start of the hearing, Marshall submitted to a drug screen. While the timing 

of the drug screen may not have left much time for Marshall to mount a defense 

of the results of the screen, Marshall had to believe that evidence of her drug 

use would be an issue at her hearing given her prior admissions to her probation 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 14 of 20

officer of her continued drug use. Finally, we note that Marshall did not 

request a continuance or additional time for preparation at the time the 

evidence of her drug screen results was introduced. Based upon the foregoing, 

we cannot conclude that Marshall’s due process rights were violated.

IV. Sufficiency of the Evidence

[28] Marshall next contends that the evidence was insufficient to revoke her 

probation because the State failed to introduce the terms of her probation into 

evidence at the probation revocation hearing either through testimony or an 

exhibit. Thus, according to Marshall, without proof of the terms of her 

probation, the State could not prove a violation of those terms.

[29] We review insufficiency of evidence claims in a probation proceeding as we do 

any other sufficiency of the evidence question. Smith v. State, 727 N.E.2d 763, 

765 (Ind. Ct. App. 2000). We will not reweigh evidence or judge credibility of 

witnesses. Id. We look only to the evidence that supports the judgment and 

any reasonable inferences flowing therefrom. Pitman v. State, 749 N.E.2d 557, 

559 (Ind. Ct. App. 2001), trans. denied.

[30] We also note that probation revocation hearings are civil in nature, and that the 

State need only prove the allegations by a preponderance of the evidence. 

Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). Further, in civil cases, a 

judicially noticed fact is taken as conclusively establishing that fact. Ind. 

Evidence Rule 201(a)(1). A trial court may take judicial notice of the records of 

a court of this state, whether requested to do so, or not. Evid. R. 201(b)(5), (c). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 15 of 20

In addition, judicial notice may be taken at any stage of the proceeding. Evid. 

R. 201(d). 

[31] Marshall argues that the State failed to introduce the specific conditions of her 

probation into evidence at the probation revocation hearing. The State’s 

petition to revoke Marshall’s probation stated that Marshall violated “Rule 

#10” of the terms of her probation, and that “Rule #10” specified, “The 

defendant shall not use alcohol or illegal drugs.” Appellant’s App. Vol. II, p.

58. The petition alleged Marshall “violated the terms of the probation 

established herein in that: The defendant overdosed on 7/23/2019 and was 

taken to Reid Hospital. Defendant received Narcan which reversed the effects 

of the illicit substances ingested.” Id. 

[32] At the outset of Marshall’s initial hearing, held on August 23, 2019, the trial 

court asked Marshall if she had received a copy of the petition, and Marshall 

replied in the affirmative. The court then proceeded to read the allegations of 

the revocation petition on the record, stating the following:

Looking at the petition it’s a petition for probation violation and 

it alleges that on 11-21-2018, you were placed on probation for a 

period of three years after you were found guilty in 35-48-44-6(a) 

uh, dealing in a look[-]alike substance and that number Rule 10, 

stated the defendant shall not use alcohol or illegal drugs and 

then it alleges that . . . the defendant overdosed on 7-23-19, was 

taken to [a hospital] and [administered a drug] which reversed 

the effects of the substances ingested.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 16 of 20

Tr. p. 4. Marshall cites no authority, and we are unaware of any, that requires 

the trial court to do more. Also, the condition that a defendant on probation 

should not commit an additional crime is automatically a condition of 

probation by operation of law without a specific provision to that effect. Lucas

v. State, 501 N.E.2d 480, 481 (Ind. Ct. App. 1986); Ind. Code § 35-38-2-1(b) 

(2012). 

[33] Finally, the trial court clearly took judicial notice of the contents of the file in 

this case. The record reveals that the file contains the original plea agreement, 

sentencing order, Agreed Sentencing Modification, and petition to revoke 

probation. These items conclusively established that Marshall: (1) was not to

use illegal drugs; and (2) was still on probation at the time of the alleged 

probation violation. When combined with the testimony introduced at the 

probation revocation hearing, we find that there was sufficient evidence 

presented from which the trial court could determine the terms of Marshall’s 

probation and then find that Marshall violated the terms.

V. Sentence

[34] Marshall last contends the trial court abused its discretion in ordering her to 

serve her entire three-year suspended sentence in the DOC. Citing that she was 

able to maintain sobriety for some period of time before her relapse, she argues 

that the trial court’s “sanction was overly harsh,” and that the trial court should 

have ordered her to attend inpatient treatment. Appellant’s Br. p. 20.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 17 of 20

[35] “Probation is a matter of grace left to trial court discretion, not a right to which 

a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 

2007). Probation revocation is a two-step process. First, the trial court must 

determine that a violation of a condition of probation actually occurred. Woods,

892 N.E.2d at 640. Second, the court must determine if the violation warrants 

revocation of probation. Id. 

“We review a trial court’s sentencing decision in a probation 

revocation proceeding for an abuse of discretion.” Puckett v. 

State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (citing 

Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006)). 

An abuse of discretion occurs if the trial court’s decision is 

against the logic and effect of the facts and circumstances before 

the court. Id. A defendant cannot collaterally attack the 

propriety of an original sentence in the context of a probation 

revocation proceeding. Id. However, a defendant is entitled to 

challenge the sentence a trial court decides to impose after 

revoking probation. Id. (citing Abernathy, 852 N.E.2d at 1020

(citing Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004) (“A 

defendant is entitled to dispute on appeal the terms of a sentence 

ordered to be served in a probation revocation proceeding that 

differ from those terms originally imposed.”))). 

Johnson v. State, 62 N.E.3d 1224, 1229-30 (Ind. Ct. App. 2016). 

[36] Under Indiana Code section 35-38-2-3(h) (2015), if a petition to revoke 

probation is filed within the defendant’s probationary period and the trial court 

finds the defendant has violated any terms of probation, the trial court may 

impose one or more of the following sanctions: (1) continue the person on 

probation, with or without modifying or enlarging the conditions; (2) extend the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 18 of 20

person’s 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.

[37] Here, the record reveals that the trial court had ample basis for its decision to 

order Marshall to serve the entirety of her suspended sentence in the DOC. 

Marshall was originally sentenced to six years executed in the DOC to be 

served in the Purposeful Incarceration program. Approximately twenty-one 

months later, the State and Marshall entered into an Agreed Sentence 

Modification; Marshall’s sentence was modified; and she was immediately 

released from incarceration to the House of Ruth program, and the three years 

remaining on her original six-year sentence were ordered served on probation. 

While Marshall performed well in the House of Ruth program, she eventually 

overdosed on illegal drugs and had to be resuscitated at a hospital. Although

Officer Whallon arranged for Marshall to be admitted to a facility for inpatient 

drug treatment, Marshall “no-showed” for her first intake appointment. Tr. p.

10. While she did show for her second intake appointment, she refused to sign 

necessary paperwork and then left the facility. At the probation revocation 

hearing, Officer Whallon testified that Marshall told him on numerous 

occasions that she continued to use methamphetamine, and that on the day of 

her hearing, she told him she had used methamphetamine within the last fifteen 

hours. Results from a drug screen administered the day of the hearing showed 

that Marshall tested positive for methamphetamine, amphetamines, MDMA, 

and fentanyl.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 19 of 20

[38] The trial court first showed leniency by sentencing Marshall to serve her 

executed sentence in the Purposeful Incarceration program. The trial court 

again showed leniency by allowing Marshall’s sentence to be modified, 

ordering her immediate release from prison, and suspending the remaining 

three years of her six-year sentence to probation. However, after having been 

afforded an opportunity to have her sentence suspended to probation, Marshall 

violated the terms of her probation by using illegal drugs. To the extent 

Marshall argues that she needs treatment, we note that the Indiana prison 

system offers multiple programs, including drug classes, designed to aid and 

rehabilitate inmates. Based upon the foregoing, and pursuant to the clear 

language of Indiana Code section 35-38-2-3(h), the trial court acted within its 

discretion in ordering execution of the entirety of Marshall’s suspended 

sentence.

Conclusion

[39] We find no reversible error in the trial court’s evidentiary rulings during the 

probation revocation hearing. There was sufficient evidence from which the 

trial court could properly conclude that Marshall violated the terms of her 

probation. The trial court did not abuse its discretion when it required 

Marshall, as the sanction for her probation violation, to serve the entirety of her 

suspended sentence in the DOC. The judgment of the trial court is affirmed.

[40] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2471 | May 6, 2020 Page 20 of 20

Robb, J., and Mathias, J., concur.