Court of Appeals of Indiana | Memorandum Decision 20A03

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### 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.
A TTORNEY FOR A PPELLANT Amy D. Griner Mishawaka, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Marjorie Lawyer

- Smith Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Marilyn K. Viers , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. April 12, 2017 Court of Appeals Ca se No. 20A03

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- 2106 Appeal from the Elkhart Superior Court The Honorable Gretchen S. Lund, Judge Trial Court Cause No. 20D04

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Pyle , Judge .Court of Appeals of Indiana | Memorandum Decision 20A03

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### Statement of the Case
[1] Marilyn K. Viers (“Viers”) appeals the trial court’s revocation of her probation and order for her to serve her previously suspended twelve

- month sentence for her conviction of Class D felony operating a vehicle while intoxicated with a prior conviction

. 1 She argues that the trial court abused its discretion because it should have considered her efforts to seek treatment for her alcoho l a ddiction and her inability to pay for a placement in community corrections. Because we conclude that the trial court did not abuse its discretion, we affirm.

[2] We affirm. 

### Issue

Whether the trial court abused its discretion in revoking Viers’ probation. 

### Facts
[3] On October 13, 2014, Viers was convicted of Class D felony operating a vehicle while intoxicated with a prior conviction. She was sentenced to eighteen (18) months w ith six (6) months to be served in community c orrections and twelve (12) months susp ended.

[4] O n January 6, 2016, the probation department filed a petition for violation of probation , alleging that Viers had violated her probation by committing three

1 I ND
. C ODE § 9

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- 3(a)(1).Court of Appeals of Indiana | Memorandum Decision 20A03

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new offenses in cause number 20D04

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- 1217 (“Cause 1217”) : (1) Level 6 felony operat ing a vehicle while intoxicated with a prior conviction; (2) Class A misdemeanor operating a vehicle while intoxicated endangering a person; and (3) Class C misdemeanor operating a vehicle w hile intoxicated . The probation department also noted that Viers’ s charges indicated that she had violated her probation by consuming alcoholic beverages.

[5] On July 13, 2016, Viers pled guilty to Level 6 felony operating a vehicle while intoxicated with a prior conviction in Cause 1217 . She also admitted to violating her probation in the instant case. The trial court then held a hearing to determine Viers’ sentence for her conviction in Cause 1217 and the sanction for her probation violation in the instant case . At the hearing, sixty

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- year old Viers submitted a letter to the trial court in which she explained that she had learning disabilities, physical disabilities, and mental health issues due to past sexual assault and domestic violence. Her counsel also told the trial court that Viers understood that she could no longer drink alcohol and that she had been working diligently to treat her addiction problem s since her previous conviction. Specifically, Viers had completed a YMCA treatment program, attended all AA meetings since the previous Februar y, and completed community service. She was also enrolled in aftercare for the YMCA program and was attending economic empowerment programs at the YMCA

. Viers’ counsel noted that her pre

- sentence investig ation report showed that she had a low risk to reo ffend.Court of Appeals of Indiana | Memorandum Decision 20A03

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[6] In response, t he State noted that Viers’ conviction in Cause 1217 was her fourth conviction for operating while intoxicated and had involved an accident. The State also pointed out that Viers had previously violated a pl acement in community corre ctions and that this probation violation was the second in her criminal history.

[7] In spite of this criminal history and her new offense, Viers requested that the trial court allow her to continue her probation with alcohol monitoring. She testified that she would lose her disability payments if she were pl aced in community c orrections, which would be difficult for her bec ause she had been struggling financially and her income was “very low.” (Tr. 29). She also believed that she would have to give up her side jobs if she were placed in work release.

[8] At the conclusion of the hearing, the trial court revoked Viers’ probation and ordered her to serve her previously suspended twelve (12)

- month sentence on home detention. Viers now appeals. 

### Decision
[9] On ap peal, Viers argues that the trial court abused its discretion when it revoked her probation and ordered her to serve her previously

- susp ended twelve

- month sentence in community c orrections. Specifically, she notes that prior to her new offense, she had co mplied with all of the terms of her probation and had made significant progress in her alcohol addiction treatment. In addition, she asserts that she cannot afford placement in c ommunity c orrections and argues that theCourt of Appeals of Indiana | Memorandum Decision 20A03

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trial court should have considered h er inability to pay before revoking her probation and placing her in community c orrections

.
[10] We have previously noted that:

Probation is a matter of grace and a conditional liberty [that] is a favor, not a right. The trial court determines the conditions of probation and may revoke probation if those conditions are violated. The decision to revoke probation is within the sound discretion of the trial court. And its decision is reviewed on appeal for abuse of disc retion. 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 we consider only the evidence most favorable to the judgment without reweighing that evide nce or judging the credibility of the witness. 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

. Lampley v. State , 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015) (quoting Ripps v. State , 968 N.E.2d 323 (Ind. Ct. App. 2012) (internal quotations and citations omitted)).

[11] I NDIANA C ODE § 35

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- 3(h) provides that if the court finds that a person has violated a condition of probation, and the petition to revoke is filed within the probationary period, the court may “impose one (1) or more of the following sanctions[:]” (1) Continue the person on probation, with or without modifying or enlarging the conditions

. (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.Court of Appeals of Indiana | Memorandum Decision 20A03

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(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing. Accordingly, the trial cour t had the statutory authority to revoke Viers’ probation and require her to serve the remainder of her suspended sentence. See I.C. § 35

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- 3(h)(3).

[12] Nevertheless, Vie rs argues that the trial court abused its discretion because it should have considere d her previous efforts to receive alcohol addiction
treatment
. We are not persuaded by this argument because, at Viers’ hearing,
t he trial court noted that its sanction was an attempt to balance the need to help her receive treatment and the need to keep her and members of the community safe. Viers’ criminal history indicated that the trial court’s concern for safety was especially relevant as Viers’ conviction in Cause 1217 was her fourth conviction for driving while intoxicated . Significantly, she was on probation for the same offense when she committed her Cause 1217 offense , and she got into an accident as a result of her actions . In light of these facts, we find that the trial court did not abuse its discretion when it ordered Viers to serve her pre viously suspended sentence

.
[13] Further, we c onclude that the trial court did not abuse its discretion by ordering Viers’ placement in community corrections without determining her ability to pay for such a placement. Viers argues that “an offender’s ability to pay [must] be considered before imposing imprisonment as a sanction for failure to complyCourt of Appeals of Indiana | Memorandum Decision 20A03

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with financial conditions associated with a sentence.” 2 (Viers’ App. 9). We agree that a probationer’s probation may not be revoked due to a failure to pay a financial condition. Woods , 892 N.E.2d at 641 (“[F]ailure to pay a probation user fee where the probationer has no ability to pay certainly cannot result in a probation revocation.”) However , that authority is not relevant here as Viers’ probation was not revoked as a result of her failure to pay a condition of her probation; it was revoked because she committed a new felony offense. Viers even acknowledges that the trial court did not impose incarceration as a result of her ina

bility to pay.

[14] Still, Viers argues that the “trial co urt should have considered [her] inability to pay for home detention when deciding whether to revoke probation.” (Viers’ Br. 9). S he does not present any legal support for that argument , though

. Becau se she has failed to support her argument with citations to legal authority, she has waived it. See Waters v. State , 65 N.E.3d 613, 618 n.2 (Ind. Ct. App. 2016); Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we have not found any legal support for Viers’ argument. 3 To the contrary, we note that the trial court was more lenient than it could have been . Under I NDIANA C ODE § 35

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- 3(h), the trial court could have ordered Viers to serve her sentence in the Department of Correction, but it allow ed her to serve her sentence on home

2 Viers cites Woods v. State , 892 N.E.2d 637, 641 (Ind. 2008) for this quote, but that passage is not in the Woods opinion. 3 The State also failed to address this issue.Court of Appeals of Indiana | Memorandum Decision 20A03

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detention in community corrections . We have previously held that placement in a community c orrections program is an altern ative to commitment to the Department of C orrection and is made at the sole discretion of the tr ial court. Brown v. State , 947 N.E.2d 486, 489 (Ind. Ct. App. 2011). “A defend ant is not entitled to serve [her] sentence in a community corrections program but, as with probation, placement in the program is a ‘matter of grace’ and a ‘conditional libert y that is a favor, not a right.’” Id. Accordingly , we conclude that the trial court did not abuse its discretion when it revoked Viers’ probation and ordered her to serve her previously suspended sentence on community corrections.

[15] Affirmed.
Baker, J., and Mathias, J., concur.