Daniel L. Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 4, 2018
• Docket: 18A-CR-949
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 04 2018, 9:37 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ronald K. Smith Curtis T. Hill, Jr. Public Defender Attorney General of Indiana Muncie, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel L. Jones, September 4, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-949 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne L. Appellee-Plaintiff Vorhees, Judge Trial Court Cause No. 18C01-1507-F4-8

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018 Page 1 of 4 Case Summary [1] Daniel L. Jones appeals the trial court’s order requiring him to serve three years

of the previously suspended portion of his sentence in the Department of

Correction for violating his probation. Because Jones committed recurring

criminal offenses while on supervised probation, we find no abuse of discretion

and affirm the trial court.

Facts and Procedural History [2] In 2015, Jones was charged with escape, a Level 4 felony; resisting law

enforcement, a Level 6 felony; and neglect of a dependent, a Level 6 felony. In

February 2016, Jones pled guilty to the escape charge and the State dismissed

the other charges. At the sentencing hearing, the trial court noted that Jones,

age twenty, had prior juvenile adjudications and adult convictions and was on

supervised probation when he committed the escape offense. Tr. pp. 8-9. The

trial court sentenced Jones to four years, with 304 days executed and 1156 days

suspended, and ordered him to serve three years on supervised probation.

[3] On December 12, 2017, the State filed a petition to revoke Jones’s probation

alleging that he committed two new criminal offenses on November 24, 2017:

residential entry and criminal mischief. The next month, on January 30, 2018,

the State amended its petition alleging that Jones committed five new criminal

offenses on January 24, 2018: resisting law enforcement, possession of

methamphetamine, possession of a narcotic drug, leaving the scene of an

Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018 Page 2 of 4 accident, and operating a motor vehicle without ever receiving a license. At the

fact-finding hearing, the trial court found that the State proved by a

preponderance of the evidence that Jones violated his probation “by

committing the offenses of residential entry and resisting law enforcement.” Id.

at 27.1

[4] At the dispositional hearing, Jones asked to be “released on GPS or house

arrest” and testified:

I have four kids and I know I’ve messed up in the past, but I really want—need to get out to take care of my children. I know that’s not an excuse, that I have children, but I just want to get out to take care of my kids right now at this moment.

Id. at 32. The trial court ordered him to serve three years in the DOC.

[5] Jones now appeals.

Discussion and Decision [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 actually

occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court

must determine if the violation warrants revocation of probation. Id. When a

probationer admits to the violation, the court can proceed to the second step

1 Jones later pled guilty to committing these two offenses in the underlying criminal cases.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018 Page 3 of 4 and determine whether the violation warrants revocation. Id. A probationer

who admits to the violation must be given an opportunity to offer mitigating

evidence suggesting the violation does not warrant revocation. Id. A trial

court’s sentencing decision for violating probation is reviewed for an abuse of

discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007); Ripps v. State, 968

N.E.2d 323, 326 (Ind. Ct. App. 2012).

[7] Jones concedes that he violated his probation. Appellant’s Br. p. 9. He argues,

however, that the trial court abused its discretion by ordering him to serve three

years in the DOC because he must take care of his four children. He asks to “be

restored to supervised probation.” Id. at 11.

[8] However, the trial court has already given Jones the chance to take care of his

children, and instead he continued committing criminal offenses. Jones was on

supervised probation when he committed the escape offense in 2015. After the

trial court sentenced Jones to supervised probation in 2016, he committed two

new criminal offenses. Notably, he committed the second of his new criminal

offenses shortly after the State filed the original petition to revoke his probation.

Therefore, considering his recurring criminal offenses while on supervised

probation, the trial court did not abuse its discretion in ordering Jones to serve

three years of the previously suspended portion of his sentence in the DOC

rather than returning him to probation.

[9] Affirmed.

Riley, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018 Page 4 of 4