ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY E. STRATMAN GREGORY F. ZOELLER Aurora, Indiana Attorney General of Indiana
BRIAN REITZ D eputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

BRYAN SCHOLTES, ) ) Appellant, ) )
vs. ) No. 15A05

- 1202

- CR

- 78 ) STATE OF INDIANA, ) ) Appellee. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathon N. Cleary, Judge Cause No. 15D01

- 0812

- FD

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September 24, 2012
MEMORANDUM DECISION

– NOT FOR PUBLICATION MATHIAS, Judge Pursuant to Ind.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.2 Bryan Scholtes (“Scholtes”) pleaded guilty in Dearborn Superior Court to Class D felony possession of a schedule IV controlled substance and was sentenced to 1,095 days with 945 suspended to reporting probation. The State sub sequently filed a petition to revoke Scholtes’s probation, because he tested positive for morphine a nd hydrocodone.
The trial court rev oked the remaining 527 days of Scholtes’ s probation. Scholtes appeals and argues that revoking the remaining 527 days of his suspended sentence was an abuse
of the trial court’s discretion.
We affirm.
Facts and Procedural History On January 22, 2009 , Scholtes pleaded guilty in Dearborn Superi or Court to Class D felony possession of a s chedule IV controlled substance and was sentenced on February 13, 2009 , to 1,095 days w ith 945 suspended to reporting probation. Scholtes’ s conditions of probation included obeying “ all city, county, state and federal laws,” not using “ any illegal drugs or controlled substances, ” and agreeing “ to drug/alcohol testing by the probation department or law enforcement officer.” Appellant’s App. p. 55. On December 7, 2010, t he State filed its first petition to revoke Scholtes’s probation. O n January 21, 2011 , Scholtes admitted to violating his probation by committing the criminal offense of operating a vehicl e with a suspended license. T he
trial court revoked 180 days of his previously s uspended sentence with two day s to be served through incarceration and the remainder to be served through Southeast Regional Community Corrections intensive in

- home detention.3 Three weeks later, o n February 11, 2011, the State filed a second petition to revoke Scholtes’s probation

. On April 11, 2011, Scholtes admitted to violating his probation by using a controlled substance, namely opiates and oxycodone, and the court
ordered him to serve 238 days of his suspended sentence and extended his probation by

one year
. While serving his probation , Scholtes began participating in the trial court’s alternative drug and substance abuse court. Between August 31, 2011 and October 5,
20 11, Scholtes either tested positive for or self

- reported illegal substance abuse on three separate occasions. Tr. pp. 6

- 7. On January 6, 2012, Scholtes submitted to a urine drug screen and tested positive for morphine and hydrocodone. The State subseque ntly filed a third petition to revoke his probation

. At the January 19, 2012 hearing, Scholtes admitted to using a controlled
substance. The trial court found that since this was his third probation violation , order ing Scholtes to serve the 527 days of his previously suspended sentence was appropriate. Scholtes now appeals.
Discussion and Decision The trial court’s decision whether to revoke probation is reviewed for an abuse of
discretion. Rosa v. State , 832 N.E.2d 11 19, 1121 (Ind. Ct. App. 2005). “An abuse of discretion occurs if the decision is against the logic and effect of the facts and
circumstances before the court.” Id. Under Indiana Code section 35

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- 3(a) , a petition to revoke probation may be filed if a person violates a condition of probation during the probation ary period. In addition under Indiana Code section 35

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- 1(b), the court may4 revoke probation if a probationer commits any additional crime. If a person is found to have violated his probation, the trial court can “[o]rder execution of all or part of the sentence that was suspended at the time of initial se ntencing.” Ind. Code § 35

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- 3(g )(3).
Scholtes argues that revoking 527 days of his susp ended sentence was an abuse of
the tri al court’s discretion. He asserts that the trial court failed to consider mitigating
factors such as his admission of responsibility and the lack of severity of the allegations of his probation violation , namely, f ailing a drug screen . He also points to his efforts in drug court as a mitigator

. See Appellant’s Br. at 4

- 5. A probationer must be provided the opportunity to present evidence that mitigates
his violation

. Cox v. State , 850 N.E.2d 485, 488 (Ind. Ct. Ap p. 2006)

. However , t rial courts are not required under Indiana Code section 35

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- 3 to balance “aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding .”
Mitchell v. State , 619 N.E.2d 961, 964 (Ind. Ct. App. 1993) , overruled in part on other ground s by Patterson v. State , 669 N.E.2d 220, 223 n. 2 (Ind. Ct. App.1 995) (holding that in a probation revocation proceeding, probationer’s mental health should be considered). Here, Scholtes was permitted the opportunity to present evidence mitiga ting his violation. Tr. p

. 8.
The trial court stated revoking Scholtes’s probation was appropriate, because this

was “a third probation violation” and his “probation violations while on drug court” were
of a “seriou s nature.” Tr. p. 9. We agree. Scholtes committed three separate probation violations, and tw o of the violations were related to his initial criminal offense of5 possession of a sch edule IV controlled substance

. Under these facts and circumstances,

t he trial court did not abuse its discretion by rev oking the 527 days of Scholtes’ s suspended sentence.
Affirmed. VAIDIK, J., and BARNES, J., concur.