Ricky D. Marcum, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] The trial court found Ricky Marcum violated his probation and revoked his entire suspended sentence. Marcum raises one issue on appeal: Did the trial court abuse its discretion by ordering him to serve his full suspended sentence in the Department of Correction (“DOC”)? We affirm.

Facts and Procedural History

[2] In April 2024, the trial court accepted Marcum's guilty plea to one count of Level 5 felony possession of methamphetamine. Per the terms of Marcum's plea agreement with the State, the trial court ordered him to serve a five-year sentence at the DOC, all suspended to formal probation (with credit for time served). Marcum signed a Probation Order and Agreement that listed the conditions of his probation. The relevant condition states: “You are not, under any circumstances, to purchase, possess, consume, or use any alcoholic beverage, intoxicating liquor, marijuana, drug or controlled substance of any kind unless legally prescribed for you by a licensed physician.” Appellant's App. Vol. 2 at 101.

[3] In September, Marcum's probation officer petitioned to revoke the suspended sentence, alleging Marcum violated his probation between July 12 and August 29 by submitting one drug screen that returned positive for alcohol and cocaine and one drug screen that returned positive for alcohol.¹ The two drug screen reports were attached to the petition. The trial court issued a warrant, and Marcum was arrested and jailed on September 18.

[4] Marcum appeared in court on January 2, 2025, for a hearing on the petition to revoke.² The hearing began with the State informing the court:

Your Honor, it's my understanding the parties have reached an agreement which would call for Mr. Marcum to admit the violation. Court would revoke [484] days, and if he successfully completes –

[Court]: No, I'm going to reject that agreement․ First witness.

Id. at 8. A probation officer who was familiar with Marcum's file testified Marcum had two positive drug screens and had not provided verification of participation in a treatment program. He also testified the positive drug screens were a violation of the terms of Marcum's probation. Marcum did not cross-examine the witness or present evidence of his own.

[5] The State argued for an executed sentence at the DOC “based upon Mr. Marcum's past criminal record as well as his inability to successfully complete probation in this case.” Id. at 11. Marcum noted there had been discussion with the State before the December 19 hearing to agree to put Marcum on home detention for 242 actual days “and then he could request a modification down to probation if he did well with no violations.” Id. Marcum asked for a sanction of 242 days on home detention, or “if the Court did not see fit for that,” for a sanction of 242 days in the DOC. Id. at 12. The court ruled:

Mr. Marcum has quite the lengthy record of felonies and misdemeanors. He has a record of, I think, lengthy record of violating probation a number of times. Probation is a privilege, it's not a matter of right. And [counsel], I don't discount your communication with [the State] at all, but the Court has a standard that the Court places on probationers, and Mr. Marcum has fallen way short of that standard.

Id. The trial court revoked Marcum's full suspended sentence and ordered him to serve 1,042 days at the DOC with credit for the time he was jailed pending resolution of the petition.

The trial court did not abuse its discretion in imposing a sanction.

[6] Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation occurred. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Second, if a violation is found, then the trial court must determine the appropriate sanction for the violation. Id. “Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed” because “[i]f this discretion were not afforded to trial courts and [sanctions] were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Therefore, we review trial court sanction decisions for abuse of discretion. Heaton, 984 N.E.2d at 616. We consider only the evidence most favorable to the judgment, and we do not reweigh the evidence or judge the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008).

[7] Indiana Code Section 35-38-2-3(h) states the court may impose one or more of the following sanctions upon finding a violation: “(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[; or] (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.” Here, the trial court ordered execution of all of Marcum's previously suspended sentence.

[8] Marcum concedes there is sufficient evidence to support the trial court's finding of a violation. See Appellant's Br. at 9. But he argues the sanction imposed by the trial court is excessive because the State had agreed to a lesser sanction which reflects “the minor nature of the violations.” Appellant's Br. at 9.³

[9] “If the parties enter into a plea agreement that calls for the trial court to treat a probation violation in a particular manner, once accepted, the trial court is thereby bound.” Jackson v. State, 968 N.E.2d 328, 334 (Ind. Ct. App. 2012) (citing I.C. § 35-35-3-3(e)). But here, the trial court rejected the agreement and with it, the lesser sanction. The trial court was not bound by an agreement it did not accept, and the sanction remained firmly in the trial court's discretion.

[10] The selection of an appropriate sanction depends on the severity of the defendant's probation violation. Heaton, 984 N.E.2d at 618. Marcum characterizes his violation as “minor.” Appellant's Br. at 9. But he was on probation for a controlled substance offense and had agreed he would not, “under any circumstances,” consume alcohol or a controlled substance of any kind. Appellant's App. Vol. 2 at 101. Within three months of starting probation, he had two positive drug tests. See Heaton, 984 N.E.2d at 618 (noting probation may be revoked on evidence of violation of a single condition). Marcum did not take advantage of the grace originally extended to him by the State in agreeing to a fully probationary sentence or by the trial court in accepting the agreement. The trial court also noted Marcum's lengthy criminal history and previous violations of probation. The record shows Marcum's criminal history spans forty years and includes six misdemeanor and nine felony convictions. Most of the convictions were for offenses involving alcohol or controlled substances—Marcum has three misdemeanor operating while intoxicated convictions, three felony dealing in a controlled substance convictions, and six felony possession of a controlled substance convictions. Marcum also had probationary sentences revoked twice.

[11] A trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances.” Heaton, 984 N.E.2d at 616. Given the considerable leeway granted to our trial courts in probation revocation proceedings, the trial court's decision here was not clearly against the logic and effect of the facts and circumstances before it.

Conclusion

[12] The trial court did not abuse its discretion in ordering Marcum to execute his entire previously suspended sentence.

[13] Affirmed.

FOOTNOTES

1.   The July report says Marcum tested positive for alcohol (ethanol) and cocaine. Id. at 108. The August report says Marcum tested positive for buprenorphine and ethyl glucuronide. Id. at 110. A witness at the revocation hearing testified the August screen was positive for alcohol. Tr. Vol. 2 at 10.

2.   Marcum briefly appeared in court in December 2024, but as his counsel was explaining the terms of an agreement to resolve the petition without returning him to the DOC, the trial court abruptly ended the hearing without explanation. See id. at 4–5.

3.   Marcum also casts doubt on the drug screens supporting the violation and claims “the lack of evidence about the reliability of the screens” makes revocation of his entire sentence an abuse of discretion. Id. But he did not object to the drug screen reports at the hearing and acknowledges he did not cross-examine the State's witness or present his own evidence. Any challenge based on the reliability of the drug screens is waived for failure to raise it in the trial court. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012).

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.