Michael Pollack v. State of Indiana ( 2013 )


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  • 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:
    
    WILLIAM S. FRANKEL, IV                              GREGORY F. ZOELLER
    Wilkinson, Goeller, Modesitt, Wilkinson &           Attorney General of Indiana
    Drummy, LLP
    Terre Haute, Indiana                                RICHARD C. WEBSTER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana
    
                                                                                      Apr 24 2013, 9:33 am
                                   IN THE
                         COURT OF APPEALS OF INDIANA
    
    MICHAEL POLLACK,                                    )
                                                        )
           Appellant-Defendant,                         )
                                                        )
                   vs.                                  )      No. 84A04-1207-CR-374
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
           Appellee-Plaintiff.                          )
    
    
                           APPEAL FROM THE VIGO SUPERIOR COURT
                               The Honorable David R. Bolk, Judge
                                 Cause No. 84D03-1109-FD-2947
    
    
                                              April 24, 2013
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    MAY, Judge
              Michael Pollack’s probation was revoked, and he appeals the order that he serve 464
    
    previously-suspended days. We affirm.
    
                                 FACTS AND PROCEDURAL HISTORY
    
              On September 14, 2011, Pollack was charged with Class D felony intimidation1 and
    
    Class B misdemeanor public intoxication.2 On April 16, 2012, Pollack accepted a plea
    
    agreement for both charges. The court sentenced Pollack to two years for intimidation and
    
    180 days for public intoxication to be served consecutively. The court gave Pollack credit for
    
    time served, and suspended the remainder of the sentence to probation. Pollack was ordered
    
    to serve the probationary period at Freebirds Solution Center, Inc., which prohibited program
    
    participants from having alcohol in their bloodstream while in the facility. On May 23, 2012,
    
    Pollack tested positive for alcohol at Freebirds, and he threatened and assaulted Freebirds
    
    staff. Based thereon, the trial court revoked Pollack’s probation and ordered him to serve the
    
    previously-suspended portion of the sentence.
    
                                    DISCUSSION AND DECISION
    
              Probation is a conditional liberty that trial courts have discretion to provide. Lightcap
    
    v. State, 
    863 N.E.2d 907
    , 911 (Ind. Ct. App. 2007). Trial courts set the conditions of
    
    probation and may revoke probation if a probationer violates a condition. Cooper v. State,
    
    
    917 N.E.2d 667
    , 671 (Ind. 2009). Thus, whether to revoke probation in any particular case
    
    resides within the discretion of the trial court, and we review its decision for abuse of
    
    
    1
        Ind. Code § 35-45-2-1.
    2
        Ind. Code § 7.1-5-1-3.
    
                                                      2
    discretion. Id. An abuse of discretion occurs only where the decision is against the logic and
    
    effect of the facts and circumstances before the court. Pugh v. State, 
    804 N.E.2d 202
    , 203
    
    (Ind. Ct. App. 2004). A revocation hearing is a civil proceeding, which means the State’s
    
    burden is to prove the violation only by a preponderance of the evidence. Id. If substantial
    
    evidence of probative value supports the finding of a violation, then we affirm. Id.
    
           Pollack argues the trial court abused its discretion in revoking his probation and
    
    ordering him to serve his suspended sentence in the Department of Correction because he
    
    became an alcoholic at an early age and, therefore, should be given another chance to change
    
    his habits via continued probation and placement in a residential treatment facility. Pollack
    
    cites no authority that suggests probation revocation in this circumstance is an abuse of
    
    discretion.
    
           Probation itself was Pollack’s second chance, and Freebirds is a facility designed to
    
    help recovering alcoholics. Pollack violated his probation by testing positive for alcohol,
    
    failing to complete the Freebirds program, and physically and verbally attacking Freebirds
    
    staff. This is substantial evidence of probative value supporting the finding of a violation
    
    and justifying the court’s decision to revoke Pollack’s suspended sentence. See Mogg v.
    
    State, 
    918 N.E.2d 750
     (Ind. Ct. App. 2009) (preponderance of evidence that Mogg consumed
    
    alcohol was sufficient for revocation of probation). Further, the trial court was within its
    
    discretion when it ordered Pollack to serve his previously-suspended sentence. See Ind. Code
    
    § 35-38-2-3(h) (“If the court finds that the person has violated a condition [of probation] . . .
    
    the court may . . . [o]rder execution of all or part of the sentence that was suspended at the
    
                                                   3
    time of initial sentencing.”).
    
           The trial court did not abuse its discretion when it ordered Pollack to serve his
    
    previously-suspended sentence because he violated the terms of his probation.       We
    
    accordingly affirm.
    
           Affirmed.
    
    ROBB, C.J., and PYLE, J., concur.
    
    
    
    
                                               4
    

Document Info

DocketNumber: 84A04-1207-CR-374

Filed Date: 4/24/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014