MEMORANDUM DECISION FILED May 30 2018, 6:50 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Angela N. Sanchez Supervising Deputy Attorney General Lyubov Gore Deputy Attorney General Craig C. Siebe Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James W. Geary, II, May 30, 2018 Appellant-Defendant, Court of Appeals Case No. 34A02-1711-CR-2724 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 34C01-1306-FB-89
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 1 of 7 [1] James W. Geary, II (“Geary”) pleaded guilty to Class C felony child
solicitation in the Howard Circuit Court in 2014. He received an eight-year
sentence in the Indiana Department of Correction (“DOC”) with five years
executed and three years suspended to supervised probation. In November
2017, the trial court found that Geary violated his probation, and it ordered
Geary to serve the remainder of his suspended sentence in the DOC. Geary
now appeals arguing that the trial court abused its discretion when it revoked
his suspended sentence.
[2] We affirm.
Facts and Procedure [3] In 2013, Geary was charged with Class B felony attempted sexual misconduct
with a minor, Class C felony child solicitation, Class D felony sexual battery,
Class A misdemeanor sex offender internet offense, and a habitual offender
enhancement.1 On March 27, 2014, Geary pleaded guilty to Class C felony
child solicitation pursuant to a plea agreement that called for eight years in the
DOC with five years executed and three years suspended to supervised
probation. The trial court accepted Geary’s plea and sentenced him in
accordance with its terms.
1 In 2014, the State added an additional charge of Class C felony sexual misconduct with a minor.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 2 of 7 [4] Geary was released from the DOC in July 2016. As part of Geary’s supervised
probation, he agreed to special probation conditions for adult sex offenders
including: Condition 14, which states that Geary shall not engage in a sexual
relationship with anyone who has a child under the age of sixteen unless given
permission; Condition 17, which states that Geary shall not have any contact
with anyone under the age of sixteen unless given court approval or after the
successful completion of a court-approved sex offender treatment program; and
Condition 25, which prohibits Geary from accessing certain web sites, chat
rooms, or instant messaging programs frequented by children. See Appellant’s
App. pp. 38–40.
[5] On September 22, 2017, the State filed a petition to revoke Geary’s suspended
sentence for violating the above three conditions. The State alleged that Geary
violated Condition 14 by having a sexual relationship with L.B., who had a
two-year-old child, M.B., at the time. And Geary had a sexual relationship with
C.D., who had two children at the time, three-year-old S.D. and eight-month-
old L.O. He allegedly violated Condition 17 by having contact with M.B. three
to four times and contact with S.D. and L.O. over twenty times. Finally, the
State alleged Geary violated Condition 25 by sending messages to L.B. via
Facebook messenger.
[6] On November 1, 2017, the trial court held a fact-finding and sentencing hearing
on the State’s petition. During the hearing, Geary admitted that all three
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 3 of 7 violations were true. The court then ordered Geary to serve the 1,095-day2
remainder of his suspended sentence to be executed in the DOC. Geary now
appeals.
Discussion and Decision [7] Geary contends that the trial court abused its discretion when it ordered him to
serve the balance of his previously suspended sentence in the DOC. Geary does
not deny that he violated the terms of his probation; to the contrary, he
admitted to having done so. He claims only that the trial court abused its
discretion in ordering the execution of the entirety of the suspended sentence
because although “rules were broken . . . rehabilitation is not served by simply
throwing [him] aside when the process is difficult.” Appellant’s Br. at 6. The
State responds that the trial court did not abuse its discretion because Geary’s
conditions of probation “do not exist solely to rehabilitate offenders” but
“[t]hey also serve the critical function of protecting the community from
offenders.” Appellee’s Br. at 8–9.
[8] Upon a finding of a probation violation, a trial court may impose one or more
of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
2 Because Geary had been in jail since September 27, 2017, he had 82 days of credit time, and thus his remaining executed sentence at the time of the hearing was 1,013 days.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 4 of 7 (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h).
[9] A defendant is not entitled to serve a sentence in a probation program; rather,
such placement is a matter of grace and a conditional liberty that is a favor, not
a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We
review the trial court’s sentencing decisions on probation violations for an
abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse
of discretion occurs where the decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. The trial court should be given
considerable leeway in deciding how to proceed following the revocation of
probation. Id. Consequently, so long as proper procedures have been followed,
the trial court may order execution of a suspended sentence after revoking
probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also
I.C. § 35-38-2-3(h).
[10] Here, Geary was on probation for Class C felony child solicitation, and thus he
was subject to certain special probation conditions for adult sex offenders.
Geary readily admits to violating three of those probation conditions. See Tr.
pp. 16–18. And Geary’s counsel stated during the hearing, “yes, my client
technically violated these rules.” Id. at 22. The trial court later told Geary, “you
had to follow the rules . . . these conditions aren’t that hard to do, and I would
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED May 30 2018, 6:50 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Angela N. Sanchez Supervising Deputy Attorney General Lyubov Gore Deputy Attorney General Craig C. Siebe Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James W. Geary, II, May 30, 2018 Appellant-Defendant, Court of Appeals Case No. 34A02-1711-CR-2724 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 34C01-1306-FB-89
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 1 of 7 [1] James W. Geary, II (“Geary”) pleaded guilty to Class C felony child
solicitation in the Howard Circuit Court in 2014. He received an eight-year
sentence in the Indiana Department of Correction (“DOC”) with five years
executed and three years suspended to supervised probation. In November
2017, the trial court found that Geary violated his probation, and it ordered
Geary to serve the remainder of his suspended sentence in the DOC. Geary
now appeals arguing that the trial court abused its discretion when it revoked
his suspended sentence.
[2] We affirm.
Facts and Procedure [3] In 2013, Geary was charged with Class B felony attempted sexual misconduct
with a minor, Class C felony child solicitation, Class D felony sexual battery,
Class A misdemeanor sex offender internet offense, and a habitual offender
enhancement.1 On March 27, 2014, Geary pleaded guilty to Class C felony
child solicitation pursuant to a plea agreement that called for eight years in the
DOC with five years executed and three years suspended to supervised
probation. The trial court accepted Geary’s plea and sentenced him in
accordance with its terms.
1 In 2014, the State added an additional charge of Class C felony sexual misconduct with a minor.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 2 of 7 [4] Geary was released from the DOC in July 2016. As part of Geary’s supervised
probation, he agreed to special probation conditions for adult sex offenders
including: Condition 14, which states that Geary shall not engage in a sexual
relationship with anyone who has a child under the age of sixteen unless given
permission; Condition 17, which states that Geary shall not have any contact
with anyone under the age of sixteen unless given court approval or after the
successful completion of a court-approved sex offender treatment program; and
Condition 25, which prohibits Geary from accessing certain web sites, chat
rooms, or instant messaging programs frequented by children. See Appellant’s
App. pp. 38–40.
[5] On September 22, 2017, the State filed a petition to revoke Geary’s suspended
sentence for violating the above three conditions. The State alleged that Geary
violated Condition 14 by having a sexual relationship with L.B., who had a
two-year-old child, M.B., at the time. And Geary had a sexual relationship with
C.D., who had two children at the time, three-year-old S.D. and eight-month-
old L.O. He allegedly violated Condition 17 by having contact with M.B. three
to four times and contact with S.D. and L.O. over twenty times. Finally, the
State alleged Geary violated Condition 25 by sending messages to L.B. via
Facebook messenger.
[6] On November 1, 2017, the trial court held a fact-finding and sentencing hearing
on the State’s petition. During the hearing, Geary admitted that all three
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 3 of 7 violations were true. The court then ordered Geary to serve the 1,095-day2
remainder of his suspended sentence to be executed in the DOC. Geary now
appeals.
Discussion and Decision [7] Geary contends that the trial court abused its discretion when it ordered him to
serve the balance of his previously suspended sentence in the DOC. Geary does
not deny that he violated the terms of his probation; to the contrary, he
admitted to having done so. He claims only that the trial court abused its
discretion in ordering the execution of the entirety of the suspended sentence
because although “rules were broken . . . rehabilitation is not served by simply
throwing [him] aside when the process is difficult.” Appellant’s Br. at 6. The
State responds that the trial court did not abuse its discretion because Geary’s
conditions of probation “do not exist solely to rehabilitate offenders” but
“[t]hey also serve the critical function of protecting the community from
offenders.” Appellee’s Br. at 8–9.
[8] Upon a finding of a probation violation, a trial court may impose one or more
of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
2 Because Geary had been in jail since September 27, 2017, he had 82 days of credit time, and thus his remaining executed sentence at the time of the hearing was 1,013 days.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 4 of 7 (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h).
[9] A defendant is not entitled to serve a sentence in a probation program; rather,
such placement is a matter of grace and a conditional liberty that is a favor, not
a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We
review the trial court’s sentencing decisions on probation violations for an
abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse
of discretion occurs where the decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. The trial court should be given
considerable leeway in deciding how to proceed following the revocation of
probation. Id. Consequently, so long as proper procedures have been followed,
the trial court may order execution of a suspended sentence after revoking
probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also
I.C. § 35-38-2-3(h).
[10] Here, Geary was on probation for Class C felony child solicitation, and thus he
was subject to certain special probation conditions for adult sex offenders.
Geary readily admits to violating three of those probation conditions. See Tr.
pp. 16–18. And Geary’s counsel stated during the hearing, “yes, my client
technically violated these rules.” Id. at 22. The trial court later told Geary, “you
had to follow the rules . . . these conditions aren’t that hard to do, and I would
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 5 of 7 find that it’s appropriate both for the protection of the community, particularly
for the children involved, that you would be ordered to serve the balance of
your suspended sentence.” Id. at 24. We agree.
[11] Geary’s only argument on appeal seems to be that the rehabilitative nature of
probation is not served by ordering him to serve the remainder of his suspended
sentence in the DOC. See Appellant’s Br. at 6–7. However, Geary actively
chose to violate three conditions of his probation. See Beeler v. State, 959 N.E.2d
828, 830 (Ind. Ct. App. 2011) (noting that violating a single condition is
sufficient for a trial court to revoke probation), trans. denied. He knew what the
conditions were, because he signed off on them. Moreover, he never attempted
to notify the probation department that he was in relationships with these two
women. Instead, Geary chose to disregard the conditions and the consequences
of any potential violation. See Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018).
[12] We also note that Geary has a prior conviction for child molestation in
Georgia. And he violated the probation conditions in that case by having
contact with two different minor children than those discussed in this appeal.
Therefore, although we recognize that rehabilitation is a primary concern
during sentencing, our supreme court has explained that “judges must have the
ability to move with alacrity to protect public safety when adjudicated offenders
violate the conditions of their sentences.” Stephens v. State, 818 N.E.2d 936, 941
(Ind. 2004). And this is precisely what the trial court did here.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 6 of 7 Conclusion [13] Because Geary overtly failed to abide by three probation conditions he agreed
to follow, and because of his prior criminal history, the trial court was well
within its discretion to order him to serve the 1,095-day balance of his
previously suspended sentence. Accordingly, we affirm.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 7 of 7