Jerry E. Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 7, 2019
• Docket: 18A-CR-2483
• 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 Mar 07 2019, 10:14 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 Christopher L. Clerc Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerry E. Jones, March 7, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2483 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Plaintiff. Judge Trial Court Cause No. 03C01-1102-FB-887

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Jerry Jones (Jones), appeals from the sanction imposed

by the trial court following the revocation of his probation.

[2] We affirm.

ISSUE [3] Jones presents one issue on appeal: Whether the trial court abused its

discretion when it ordered him to serve the entirety of his previously-suspended

sentence.

FACTS AND PROCEDURAL HISTORY [4] On February 14, 2011, the State filed an Information, charging Jones with two

Counts of Class B felony dealing in a schedule II controlled substance. On June

29, 2011, Jones pleaded guilty to one Count of Class B felony dealing in a

schedule II controlled substance, and the trial court sentenced him to twelve

years with the Department of Correction (DOC), with four years suspended to

probation. The trial court found as aggravating circumstances that Jones was

on probation at the time he committed the offense, his previous opportunities

for treatment had not been effective, and the offense was Jones’ third felony

conviction. The date of Jones’ completion of his sentence and release to

probation is not part of the record on appeal.

[5] On March 7, 2017, the State filed a petition to revoke Jones’ probation, alleging

that he had been arrested for the new offense of theft on January 25, 2017, in

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 2 of 6 Johnson County. On August 21, 2017, the State filed an amended petition to

revoke Jones’ probation, alleging that he had committed the new offense of

operating a motor vehicle while intoxicated on August 11, 2017. On October 9,

2017, the State amended its petition a second time to include an allegation that

Jones had committed the new offenses of aggravated battery, domestic battery

while children were present, domestic battery, and criminal trespass on October

4, 2017, in Johnson County.

[6] On May 31, 2018, the trial court held Jones’ probation revocation hearing.

Jones admitted that he had committed the new offenses, and the trial court

revoked his probation. 1 On September 13, 2018, the trial court held Jones’

dispositional hearing. By then Jones had pleaded guilty to, and been sentenced

for, Level 6 felony theft, battery, and domestic battery. His new operating a

motor vehicle while intoxicated charge was still pending. Jones testified that

his conviction for theft for stealing a Lego set was the result of his wife leaving

the store without telling him, causing him to seek her out past the point of sale

without purchasing the toy. Jones also admitted that he had abused opiates,

Xanax, and marijuana while on probation and that his wife’s act of flushing his

Xanax down the toilet angered him on the day he committed the new battery

offenses. However, Jones denied hitting his wife. Jones felt that he was in need

of substance abuse treatment which he had never received.

1 A transcript of this hearing is not part of the record on appeal. It is unclear from the record whether Jones had already pleaded guilty to any of his new charges by the date of his revocation hearing.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 3 of 6 [7] At the conclusion of the hearing, the trial court found that Jones was in need of

the structured substance abuse treatment that would be available to him with

the DOC. The trial court also found that Jones had been convicted originally of

a dealing offense and that his newest convictions were felonies. The trial court

ordered Jones to serve the four-year balance of his previously-suspended

[8] Jones now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [9] It is well-settled that probation is a matter of grace which is left to the trial

court’s discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). In

exercising that discretion, the trial court may determine probation conditions

and revoke probation if those conditions are violated. Id. If a trial court

revokes probation, it may continue the person on probation, extend the

probationary period for not more than one year, or order the execution of all or

part of the previously-suspended sentence. Ind. Code § 35-38-2-3(h). The trial

court has considerable leeway in deciding how to proceed in probation matters.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). If this were not so, trial court

judges would be less inclined to order probation for defendants. Id. In light of

this considerable leeway, “a trial court’s sentencing decisions for probation

violations are reviewable using the abuse of discretion standard.” Id. An abuse

of discretion occurs where the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before it. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 4 of 6 [10] Here, Jones had a significant criminal history and had his probation revoked on

at least one occasion in the past. Jones was given yet another chance in the

community when he was granted probation in this case, but while exercising

that conditional freedom, he had three sets of new contacts with the criminal

justice system, resulting in three new felony convictions. Two of those new

convictions involved violence. Jones has a long history of substance abuse and

was offered treatment through his various contacts with the criminal justice

system in 2000, 2004, 2009, and 2010. Jones did not avail himself of those

opportunities and admitted to abusing opiates, Xanax, and marijuana while on

probation in this case. Given these circumstances, we cannot conclude that it

was an abuse of the trial court’s discretion to order Jones to serve his

previously-suspended four-year sentence.

[11] Jones argues that the trial court abused its discretion when it failed to consider

his admissions to the new offenses as a mitigating sentencing factor. However,

a trial court is not obligated to consider mitigating and aggravating

circumstances when imposing a probation revocation sanction. See Treece v.

State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied; see also Porter v. State,

2018 WL 6839398, at *2 (Ind. Ct. App., Dec. 31, 2018) (rejecting Porter’s

argument that the trial court should have accorded mitigating weight to his

admission at his probation revocation hearing to a new offense). Even so, at his

dispositional hearing, Jones attempted to shift blame for the theft offense and

denied battering his wife, offenses to which he had already pleaded guilty. We

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 5 of 6 find no abuse of discretion on the part of the trial court. Prewitt, 878 N.E.2d at

188.

CONCLUSION [12] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it ordered Jones to serve his previously-suspended four-year

[13] Affirmed.

[14] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 6 of 6