Johnnie A. Winners v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 2, 2016
• Docket: 02A05-1505-CR-335
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 02 2016, 8:31 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 Donald C. Swanson, Jr. Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Johnnie A. Winners, February 2, 2016 Appellant-Defendant, Court of Appeals Case No. 02A05-1505-CR-335 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D04-0709-FC-226

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 1 of 6 STATEMENT OF THE CASE

[1] Appellant-Defendant, Johnnie A. Winners (Winners), appeals the imposition of

his previously suspended sentence after the trial court revoked his probation.

[2] We affirm.

ISSUE

[3] Winners raises one issue on appeal, which we restate as follows: Whether the

trial court abused its discretion by ordering Winners to serve his previously

suspended sentence after he violated the terms of his probation.

FACTS AND PROCEDURAL HISTORY

[4] On January 11, 2008, Winners pled guilty to Count I, forgery, a Class C felony

and Count II, theft, a Class D felony. On Count I, Winners was sentenced to

six years at the Department of Correction (DOC), with four years executed and

the remaining two years suspended to probation. As for Count II, Winners was

sentenced to two and one-half years executed. Winners’ sentences were to run

concurrently. The trial court’s order of probation issued on the same day

explicitly required Winners to behave well and to refrain from possessing

weapons or firearms as the terms and conditions of his probation.

[5] On October 24, 2011, a Verified Petition for Revocation of Probation was filed

as a result of Winners’ termination “from the ReEntry Court Program in

consecutive cause number 02D04-0712-FC-309.” (Appellant’s App. p. 14).

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 2 of 6 After a probation violation hearing on December 20, 2011, Winners’ probation

was extended by two years.

[6] On February 5, 2015, Jemal Cooper (Cooper) was helping Winners’ daughter,

Jamie Winners (Jamie), to move her possessions out of her grandmother’s

house on New Heaven Avenue in Fort Wayne. Winners and his brother,

Steven Winners (Steven), were also present. At some point, Jamie and Steven

started arguing. The argument quickly escalated to the point where Steven

grabbed Jamie by the neck and started choking her. Cooper attempted to pull

Steven off of Jamie, and Steven punched Cooper. Steven then called Winners

for help, who also punched Cooper. Cooper and Jamie ran out the door.

Steven urged Winners to kill Cooper. Winners retrieved a shotgun, came out of

the house, and aimed the shotgun directly at Cooper. Cooper and Jamie fled to

the neighbor’s house and called the police.

[7] On February 6, 2015, the Allen County Adult Probation Department filed a

Verified Petition for Revocation of Probation alleging that Winners violated his

probation by committing battery and possessing a firearm. On April 9, 2015,

the trial court held a probation revocation hearing and found that Winners had

violated the terms and conditions of his probation. The trial court ordered

Winners to serve two years of his previously suspended sentence in the DOC.

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

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 3 of 6 DISCUSSION AND DECISION

[9] Winners claims that the trial court abused its discretion by revoking his

probation. It is well established that probation is a favor granted by the State

and is not a right to which a criminal defendant is entitled. Sparks v. State, 983

N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies

within the sound discretion of the trial court. Id. Thus, a trial court’s decision

to revoke probation and its subsequent sentencing decision are reviewed for an

abuse of discretion. Id.

[10] Once a trial court has concluded that probation has been violated, it may

continue the defendant on probation, extend the probationary period for not

more than one year beyond the original period, or order all or part of the

previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).

[11] Winners alleges that the circumstances surrounding his present probation

violation do not warrant the imposition of the entire balance of his previously-

suspended sentence. Specifically, he argues that the incident occurred between

the family members, he never discharged the firearm, and no one was injured.

He claims that Cooper did not even feel any pain as a result of his strikes.

Winners concludes that this incident was not the kind of incident that would

warrant the “harshest punishment under Indiana law.” (Appellant’s Br. p. 5).

[12] We disagree. One of the conditions to Winners’ probation was that he

refrained from committing new offenses. In addition, Winners was prohibited

from possessing a firearm. Winners signed the order of probation and was fully

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 4 of 6 aware of these basic rules. Winners should have followed them: he could have

left the scene, or called the police, or even attempted to dissuade Steven from

choking Jamie. Winners, however, did not do any of that. Instead, he willingly

entered into a fight between Steven, who was battering Jamie, and Cooper, who

was trying to stop the battery. He effectively assisted Steven by striking Cooper.

When Cooper and Jamie fled from the house, Winners chose to arm himself

with a shotgun, follow Cooper and Jamie out of the house, and aim the shotgun

at Cooper. Winners’ battery of Cooper and possession of a firearm violated the

two basic rules of his probation.

[13] Moreover, this was not his first violation of probation. In 2011, Winners

violated the terms and conditions of his probation in the current case by being

terminated from the ReEntry Court Program. However, even then, his

probation was not revoked; he was given leniency and was returned to

probation with an extension of two years.

[14] As such, because probation is a matter of grace and the fact that Winners

violated his probation twice, the trial court’s decision to stop awarding favors to

Winners in the light of his behavior is appropriate under the circumstances and

well within the trial court’s sound discretion.

CONCLUSION

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

discretion in revoking Winners’ probation.

[16] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 5 of 6 [17] Najam, J. and May, J. concur

Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016 Page 6 of 6