FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 18 2013, 8:29 am any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. ANDREW PERKINS GREGORY F. ZOELLER Rochester, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JONATHAN BOOKS, ) ) Appellant-Defendant, ) ) vs. ) No. 25A03-1208-CR-357 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FULTON SUPERIOR COURT The Honorable Wayne E. Steele, Judge Cause No. 25D01-0902-FB-64
January 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
Jonathan Books (“Books”) appeals his sanction for a probation violation. We
affirm.
ISSUE
Whether the trial court erroneously ordered Books to serve the balance of his suspended sentence in the Department of Correction for violating the terms of his probation. FACTS
On November 7, 2008, Debra Goggins (“Goggins”) reported to the Fulton County
Sheriff’s Department that her residence had been burglarized. Goggins stated that she
had been away from her house since October 1, 2008. When Goggins returned, she
discovered that bratwurst, ground beef, pork chops, pork loin, whiskey, and a flashlight
were stolen. In addition, she noted that the bathroom had been used, and there were burn
marks in the blanket on her bed, as if someone had been smoking while lying in bed.
On February 5, 2009, Books was interviewed by law enforcement. During the
interview, Books admitted to breaking into the residence to steal food. On February 10,
2009, Books was charged with one count of burglary as a class B felony and two counts
of theft as class D felonies. On June 30, 2009, Books pleaded guilty to burglary as a
class B felony. In exchange, the State dismissed the remaining counts.
On August 18, 2009, the trial court held a sentencing hearing. Prior to imposing
its sentence, the trial court found Books’ criminal history to be an aggravating factor. His
2 criminal history consisted of an adjudication for child molesting as a juvenile in 1999,
and a misdemeanor conviction for criminal mischief in 2004. The trial court imposed a
ten (10) year sentence, with four (4) years executed in the Department of Correction and
the remaining six (6) years to be served on probation.
Books’ probationary period began on November 4, 2010. While on probation,
Books was required to regularly report to his probation officer, inform the probation
department of any change in address, and to obey the laws of the State of Indiana.
Because Books was homeless, he began his probation residing at the Emmaus Mission
Center in Logansport, Indiana.
On April 14, 2011, the Fulton County Probation Department filed a petition
alleging that Books violated the term of his probation by failing to (1) meet with his
probation officer in March 2011; and (2) inform the Department that he had been “kicked
out” of the Emmaus Mission Center “for being non-compliant.” (App. 69). Books was
subsequently arrested. On July 26, 2011, Books admitted the allegations. The trial court
ordered Books to return to probation.
After Books release, Fulton County transferred his probation to Cass County.
However, when Cass County officials were unable to locate Books, a new petition
seeking to revoke his probation was filed on November 15, 2011. The petition also
alleged that Books failed to meet with his probation officer on September 13, 2011. On
November 29, 2011, an amended petition was filed alleging that Books violated his
probation by committing the offense of receiving stolen property as a class D felony.
3 Again, Books was eventually arrested and an evidentiary hearing was scheduled for July
17, 2012.
At the evidentiary hearing, Books acknowledged that he had violated the terms of
his probation. Specifically, he acknowledged that he had failed to maintain contact with
his probation officer and that he had recently pleaded guilty to the new offense of
burglary as a class C felony. At the evidentiary hearing, Deputy Larry C. Jolley testified
that the burglarized residence was for sale and in the process of being remodeled. Books
admitted to breaking into the unoccupied house and stealing plumbing fixtures and
copper wiring. Books stated that he remained homeless, and that he sold the stolen items
to a scrap yard and used the money to buy “clothes, shoes, [and] food.” Tr. at 7. At the
conclusion of the hearing, the State asked the trial court to revoke Books’ probation and
impose a sanction of six (6) years to the Department of Correction. The State
characterized Books’ actions in light of his prior burglary conviction as an escalation of
events. Books’ counsel disagreed with the State’s characterization and asked the trial
court to impose an eighteen (18) month sanction, giving due consideration to Books’
homelessness.
Prior to imposing a sanction for the probation violations, the trial court stated,
The Court, having determined the Defendant did violate the terms and conditions of his probation, now finds that his probation should be revoked, that he should be ordered to serve the balance of the sentence, get credit for any time served in a good-time credit. Again, I think we all are recognizing the circumstances, but I think the, the Court recognized some of that at the original sentencing in this matter, gave him a split sentence and placed him on probation with some terms and conditions that were meant to assist and
4 help Mr. Books, and he did not take advantage of those and continues to violate the law; that the Court would agree I think his behavior is escalated, not the charge itself but the behavior itself, and so the Court will revoke his probation, . . . . Tr. 19. Books was ordered to serve the remaining six (6) years of his sentence at the
Department of Correction. Books now appeals.
DISCUSSION
Books argues that the six (6) year sanction for his violation of the terms of
probation was inappropriate. Specifically, Books asserts that the trial court improperly
characterized his new felony offense as an escalation of events. Further, Books argues
that the trial court did not give due consideration to his homelessness as a mitigating
factor.
A trial court’s sentence imposed for a probation violation is reviewed for an abuse
of discretion. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied.
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.’” Id.
(quoting Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005)).
In this case, we cannot say that the trial court abused its discretion in ordering
Books to serve the balance of his suspended sentence at the Department of Correction.
Books has demonstrated an unwillingness to remain in contact with his probation
officers. While we are mindful that homelessness can make compliance with the terms of
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FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 18 2013, 8:29 am any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. ANDREW PERKINS GREGORY F. ZOELLER Rochester, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JONATHAN BOOKS, ) ) Appellant-Defendant, ) ) vs. ) No. 25A03-1208-CR-357 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FULTON SUPERIOR COURT The Honorable Wayne E. Steele, Judge Cause No. 25D01-0902-FB-64
January 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
Jonathan Books (“Books”) appeals his sanction for a probation violation. We
affirm.
ISSUE
Whether the trial court erroneously ordered Books to serve the balance of his suspended sentence in the Department of Correction for violating the terms of his probation. FACTS
On November 7, 2008, Debra Goggins (“Goggins”) reported to the Fulton County
Sheriff’s Department that her residence had been burglarized. Goggins stated that she
had been away from her house since October 1, 2008. When Goggins returned, she
discovered that bratwurst, ground beef, pork chops, pork loin, whiskey, and a flashlight
were stolen. In addition, she noted that the bathroom had been used, and there were burn
marks in the blanket on her bed, as if someone had been smoking while lying in bed.
On February 5, 2009, Books was interviewed by law enforcement. During the
interview, Books admitted to breaking into the residence to steal food. On February 10,
2009, Books was charged with one count of burglary as a class B felony and two counts
of theft as class D felonies. On June 30, 2009, Books pleaded guilty to burglary as a
class B felony. In exchange, the State dismissed the remaining counts.
On August 18, 2009, the trial court held a sentencing hearing. Prior to imposing
its sentence, the trial court found Books’ criminal history to be an aggravating factor. His
2 criminal history consisted of an adjudication for child molesting as a juvenile in 1999,
and a misdemeanor conviction for criminal mischief in 2004. The trial court imposed a
ten (10) year sentence, with four (4) years executed in the Department of Correction and
the remaining six (6) years to be served on probation.
Books’ probationary period began on November 4, 2010. While on probation,
Books was required to regularly report to his probation officer, inform the probation
department of any change in address, and to obey the laws of the State of Indiana.
Because Books was homeless, he began his probation residing at the Emmaus Mission
Center in Logansport, Indiana.
On April 14, 2011, the Fulton County Probation Department filed a petition
alleging that Books violated the term of his probation by failing to (1) meet with his
probation officer in March 2011; and (2) inform the Department that he had been “kicked
out” of the Emmaus Mission Center “for being non-compliant.” (App. 69). Books was
subsequently arrested. On July 26, 2011, Books admitted the allegations. The trial court
ordered Books to return to probation.
After Books release, Fulton County transferred his probation to Cass County.
However, when Cass County officials were unable to locate Books, a new petition
seeking to revoke his probation was filed on November 15, 2011. The petition also
alleged that Books failed to meet with his probation officer on September 13, 2011. On
November 29, 2011, an amended petition was filed alleging that Books violated his
probation by committing the offense of receiving stolen property as a class D felony.
3 Again, Books was eventually arrested and an evidentiary hearing was scheduled for July
17, 2012.
At the evidentiary hearing, Books acknowledged that he had violated the terms of
his probation. Specifically, he acknowledged that he had failed to maintain contact with
his probation officer and that he had recently pleaded guilty to the new offense of
burglary as a class C felony. At the evidentiary hearing, Deputy Larry C. Jolley testified
that the burglarized residence was for sale and in the process of being remodeled. Books
admitted to breaking into the unoccupied house and stealing plumbing fixtures and
copper wiring. Books stated that he remained homeless, and that he sold the stolen items
to a scrap yard and used the money to buy “clothes, shoes, [and] food.” Tr. at 7. At the
conclusion of the hearing, the State asked the trial court to revoke Books’ probation and
impose a sanction of six (6) years to the Department of Correction. The State
characterized Books’ actions in light of his prior burglary conviction as an escalation of
events. Books’ counsel disagreed with the State’s characterization and asked the trial
court to impose an eighteen (18) month sanction, giving due consideration to Books’
homelessness.
Prior to imposing a sanction for the probation violations, the trial court stated,
The Court, having determined the Defendant did violate the terms and conditions of his probation, now finds that his probation should be revoked, that he should be ordered to serve the balance of the sentence, get credit for any time served in a good-time credit. Again, I think we all are recognizing the circumstances, but I think the, the Court recognized some of that at the original sentencing in this matter, gave him a split sentence and placed him on probation with some terms and conditions that were meant to assist and
4 help Mr. Books, and he did not take advantage of those and continues to violate the law; that the Court would agree I think his behavior is escalated, not the charge itself but the behavior itself, and so the Court will revoke his probation, . . . . Tr. 19. Books was ordered to serve the remaining six (6) years of his sentence at the
Department of Correction. Books now appeals.
DISCUSSION
Books argues that the six (6) year sanction for his violation of the terms of
probation was inappropriate. Specifically, Books asserts that the trial court improperly
characterized his new felony offense as an escalation of events. Further, Books argues
that the trial court did not give due consideration to his homelessness as a mitigating
factor.
A trial court’s sentence imposed for a probation violation is reviewed for an abuse
of discretion. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied.
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.’” Id.
(quoting Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005)).
In this case, we cannot say that the trial court abused its discretion in ordering
Books to serve the balance of his suspended sentence at the Department of Correction.
Books has demonstrated an unwillingness to remain in contact with his probation
officers. While we are mindful that homelessness can make compliance with the terms of
probation more difficult, Books has engaged in behavior that suggests he is not receptive
5 to the assistance being provided by the community. For example, he was removed from
housing provided by Emmaus Mission Center for noncompliance. In addition, this is the
second probation violation. Further, Books has now committed another burglary offense,
damaging and stealing property belonging to another person. Arguably, the worst thing a
defendant can do while being supervised on probation is to commit a new felony offense,
particularly the same offense. As a result, we find no abuse of discretion.
Affirmed.
ROBB, C.J., and MAY, J., concur.