MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 10 2016, 8:16 am 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 Patricia Caress McMath Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey W. Smith, March 10, 2016 Appellant-Respondent, Court of Appeals Case No. 52A04-1509-CR-1302 v. Appeal from the Miami Superior Court State of Indiana, The Honorable Daniel C. Banina, Appellee-Petitioner. Judge Trial Court Cause No. 52D02-1103-FC-49
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 1 of 7 [1] In 2011, Appellant-Respondent Jeffrey Smith pled guilty to two counts of Class
D felony battery resulting in bodily injury and was sentenced to an aggregate
term of five years, with one year executed and four years suspended to
probation. Smith was first alleged to have violated the terms of his probation in
September of 2012. Smith admitted the alleged violations and was ordered to
serve 180 days of his suspended sentence.
[2] On December 31, 2014, Appellee-Petitioner the State of Indiana (the “State”)
filed a second petition alleging that Smith had violated the terms of his
probation. In this petition, the State alleged that Smith had failed to report to
the probation department. The State amended its petition on April 20, 2015, to
include an allegation that Smith had also violated the terms of his probation by
committing a new criminal offense, i.e., resisting law enforcement by fleeing.
Smith admitted to committing the alleged violations on August 3, 2015. The
trial court revoked Smith’s probation and ordered Smith to serve the remaining
three-and-one-half-year balance of his previously suspended sentence.
[3] On appeal, Smith contends that the trial court abused its discretion in revoking
his probation and ordering him to serve the remaining three-and-one-half-year
balance of his previously suspended sentence. Concluding otherwise, we
affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 2 of 7 [4] In 2011, Smith was charged with three counts stemming from an incident with
a seven-year-old girl: Class C felony child molesting, Class D felony sexual
battery, and Class D felony battery resulting in bodily injury. Smith was also
alleged to be a habitual offender. Smith subsequently pled guilty to two counts
of Class D felony battery resulting in bodily injury. In return for Smith’s guilty
plea, the State agreed to drop the remaining charge. The trial court accepted
Smith’s guilty plea and sentenced him to an aggregate term of five years, with
one year executed and four years suspended to probation.
[5] In September of 2012, the State first alleged that Smith had violated the terms of
his probation. Specifically, the State alleged that Smith had committed an
invasion of privacy, failed to register as a sex or violent offender, failed to report
to probation, had violated a no-contact order, and committed the offense of
false informing. Smith subsequently admitted the alleged violations and was
ordered to serve 180 days of his suspended sentence.
[6] On December 31, 2014, the State filed a second petition alleging that Smith had
violated the terms of his probation. In this petition, the State alleged that Smith
had violated the terms of his probation by failing to report to the probation
department. The State amended its petition on April 20, 2015, to include an
allegation that Smith had also violated the terms of his probation by committing
a new criminal offense, i.e., resisting law enforcement by fleeing.
[7] During an August 3, 2015 dispositional hearing, Smith admitted that he had
committed the alleged probation violations. In admitting to the violations,
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 3 of 7 Smith claimed that he had been confused about whether he had to report to the
probation department while still on parole. Smith also claimed that he fled law
enforcement because he believed that someone was coming to harm him. In
light of Smith’s admissions, the trial court determined that Smith had violated
the terms of his probation. The trial court then revoked Smith’s probation and
ordered Smith to serve the remaining three-and-one-half-year balance of his
previously suspended sentence. This appeal follows.
Discussion and Decision [8] Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants. Accordingly, a trial court’s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).
With respect to the imposition of a sanction following the determination that
one has violated the terms of their probation, Indiana Code section 35-38-2-3(h)
provides as follows:
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 4 of 7 If the court finds that the person has violated a condition at any time before termination of the period, 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. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
[9] In claiming that the trial court abused its discretion in ordering him to serve the
remaining three-and-one-half-year balance of his previously suspended
sentence, Smith acknowledged that he was found to have committed two
violations and that these violations were for failing to report to the probation
department when he was released from prison and then for running from the
police when they came to arrest him on the probation violation warrant. Smith
argued, however, that the revocation of the entire balance of his previously
suspended sentence was not warranted “given the nature of the violations and
the circumstances under which they occurred.” Appellant’s Br. p. 7.
[10] With regard to the alleged circumstances surrounding the instant violations,
Smith asserts that he failed to report to the probation department because “there
was confusion with his parole officers about whether he had to report to
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 10 2016, 8:16 am 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 Patricia Caress McMath Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey W. Smith, March 10, 2016 Appellant-Respondent, Court of Appeals Case No. 52A04-1509-CR-1302 v. Appeal from the Miami Superior Court State of Indiana, The Honorable Daniel C. Banina, Appellee-Petitioner. Judge Trial Court Cause No. 52D02-1103-FC-49
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 1 of 7 [1] In 2011, Appellant-Respondent Jeffrey Smith pled guilty to two counts of Class
D felony battery resulting in bodily injury and was sentenced to an aggregate
term of five years, with one year executed and four years suspended to
probation. Smith was first alleged to have violated the terms of his probation in
September of 2012. Smith admitted the alleged violations and was ordered to
serve 180 days of his suspended sentence.
[2] On December 31, 2014, Appellee-Petitioner the State of Indiana (the “State”)
filed a second petition alleging that Smith had violated the terms of his
probation. In this petition, the State alleged that Smith had failed to report to
the probation department. The State amended its petition on April 20, 2015, to
include an allegation that Smith had also violated the terms of his probation by
committing a new criminal offense, i.e., resisting law enforcement by fleeing.
Smith admitted to committing the alleged violations on August 3, 2015. The
trial court revoked Smith’s probation and ordered Smith to serve the remaining
three-and-one-half-year balance of his previously suspended sentence.
[3] On appeal, Smith contends that the trial court abused its discretion in revoking
his probation and ordering him to serve the remaining three-and-one-half-year
balance of his previously suspended sentence. Concluding otherwise, we
affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 2 of 7 [4] In 2011, Smith was charged with three counts stemming from an incident with
a seven-year-old girl: Class C felony child molesting, Class D felony sexual
battery, and Class D felony battery resulting in bodily injury. Smith was also
alleged to be a habitual offender. Smith subsequently pled guilty to two counts
of Class D felony battery resulting in bodily injury. In return for Smith’s guilty
plea, the State agreed to drop the remaining charge. The trial court accepted
Smith’s guilty plea and sentenced him to an aggregate term of five years, with
one year executed and four years suspended to probation.
[5] In September of 2012, the State first alleged that Smith had violated the terms of
his probation. Specifically, the State alleged that Smith had committed an
invasion of privacy, failed to register as a sex or violent offender, failed to report
to probation, had violated a no-contact order, and committed the offense of
false informing. Smith subsequently admitted the alleged violations and was
ordered to serve 180 days of his suspended sentence.
[6] On December 31, 2014, the State filed a second petition alleging that Smith had
violated the terms of his probation. In this petition, the State alleged that Smith
had violated the terms of his probation by failing to report to the probation
department. The State amended its petition on April 20, 2015, to include an
allegation that Smith had also violated the terms of his probation by committing
a new criminal offense, i.e., resisting law enforcement by fleeing.
[7] During an August 3, 2015 dispositional hearing, Smith admitted that he had
committed the alleged probation violations. In admitting to the violations,
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 3 of 7 Smith claimed that he had been confused about whether he had to report to the
probation department while still on parole. Smith also claimed that he fled law
enforcement because he believed that someone was coming to harm him. In
light of Smith’s admissions, the trial court determined that Smith had violated
the terms of his probation. The trial court then revoked Smith’s probation and
ordered Smith to serve the remaining three-and-one-half-year balance of his
previously suspended sentence. This appeal follows.
Discussion and Decision [8] Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. 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. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants. Accordingly, a trial court’s sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).
With respect to the imposition of a sanction following the determination that
one has violated the terms of their probation, Indiana Code section 35-38-2-3(h)
provides as follows:
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 4 of 7 If the court finds that the person has violated a condition at any time before termination of the period, 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. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
[9] In claiming that the trial court abused its discretion in ordering him to serve the
remaining three-and-one-half-year balance of his previously suspended
sentence, Smith acknowledged that he was found to have committed two
violations and that these violations were for failing to report to the probation
department when he was released from prison and then for running from the
police when they came to arrest him on the probation violation warrant. Smith
argued, however, that the revocation of the entire balance of his previously
suspended sentence was not warranted “given the nature of the violations and
the circumstances under which they occurred.” Appellant’s Br. p. 7.
[10] With regard to the alleged circumstances surrounding the instant violations,
Smith asserts that he failed to report to the probation department because “there
was confusion with his parole officers about whether he had to report to
probation while still on parole.” Appellant’s Br. p. 7. Smith further asserts that
in light of this alleged confusion, “once he learned [that] there was a parole
violation warrant for him a day after he was released, he thought it would be
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 5 of 7 better to not report to probation (because he believed reporting would ‘activate’
probation) so that he would not get a probation violation warrant in addition to
the parole warrant.” Appellant’s Br. p. 7. He also explained that he ran from
the police officers who came to serve the probation violation warrant because
“he had been told by the person he was staying with that she was sending a
couple of guys to beat him up.” Appellant’s App. p. 7. The trial court was
under no obligation to credit Smith’s explanations, and did not. See Klaff v.
State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008) (providing that the trial court,
acting as the trier-of-fact, is free to believe whomever it sees fit).
[11] After finding that Smith had violated the terms of his probation, the trial court
found that Smith had a significant criminal history, which included convictions
for seven misdemeanors and fourteen felonies. Of those convictions, “a lot of
them [were] convictions [for] crimes against persons[,]” four “were sexually
based offenses[,]” and “one offense [was] for failure to register as a sex
offender.” Tr. p. 28. The trial court also found that Smith had previously been
on probation “several times” and that he had previously had his “probation and
parole revoked.” Tr. p. 28. In light of these facts, the trial court determined
that Smith was a “very high risk of reoffending.” Tr. p. 28. In imposing this
sanction, the trial court stated that it did not see “any benefit of putting [Smith]
on probation because I think you [would] just ultimately fail.” Tr. p. 28.
[12] Smith’s challenge on appeal appears to be based on his belief that the trial court
should not have considered his lengthy criminal history, including a history of
probation and parole violations, when revoking his probation. Such a belief is
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 6 of 7 without merit. In Prewitt, the Indiana Supreme Court held that the trial court
acted within its discretion in considering the respondent’s multiple prior
probation violations, past criminal history, and apparent unwillingness to
complete court-ordered services when imposing a sanction after finding that the
respondent had violated the terms of his probation. Prewitt, 878 N.E.2d at 188.
Similarly here, we conclude that the trial court acted within its discretion in
considering Smith’s lengthy criminal history, which again included numerous
probation and parole violations, when revoking his probation and ordering
Smith to serve the remainder of his previously suspended sentence in the DOC.
[13] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016 Page 7 of 7