ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY E. STRATMAN GREGORY F. ZOELLER

Aurora, Indiana Attorney General of Indiana

BRIAN REITZ

Deputy 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-267

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MEMORANDUM DECISION – NOT FOR PUBLICATION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 subsequently filed a petition to 

revoke Scholtes’s probation, because he tested positive for morphine and hydrocodone. 

The trial court revoked 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 Superior Court to Class 

D felony possession of a schedule IV controlled substance and was sentenced on 

February 13, 2009, to 1,095 days with 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, the State filed its first petition to revoke Scholtes’s 

probation. On January 21, 2011, Scholtes admitted to violating his probation by 

committing the criminal offense of operating a vehicle with a suspended license. The 

trial court revoked 180 days of his previously suspended sentence with two days to be 

served through incarceration and the remainder to be served through Southeast Regional 

Community Corrections intensive in-home detention. 
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Three weeks later, on 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, 

2011, 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 subsequently 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, ordering

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 1119, 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 35-38-2-3(a), a petition 

to revoke probation may be filed if a person violates a condition of probation during the 

probationary period. In addition under Indiana Code section 35-38-2-1(b), the court may 
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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 sentencing.” Ind. Code § 35-38-2-

3(g)(3).

Scholtes argues that revoking 527 days of his suspended sentence was an abuse of 

the trial 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, failing 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. App. 2006). However, trial 

courts are not required under Indiana Code section 35-38-2-3 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 

grounds 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 mitigating 

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 “serious nature.” Tr. p. 9. We agree. Scholtes committed three separate probation 

violations, and two of the violations were related to his initial criminal offense of 
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possession of a schedule IV controlled substance. Under these facts and circumstances, 

the trial court did not abuse its discretion by revoking the 527 days of Scholtes’s

suspended sentence.

Affirmed.

VAIDIK, J., and BARNES, J., concur.