Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Nov 26 2014, 9:24 am 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:
GILDA W. CAVINESS GREGORY F. ZOELLER Caviness Law Office, LLC Attorney General of Indiana Rushville, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JORDAN RIVERA, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1404-CR-156 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT The Honorable Charles D. O’Connor, Judge Cause No. 73C01-0402-FA-1
November 26, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Jordan Rivera appeals the sentence the trial court imposed after Rivera admitted to
violating the terms of his probation. We affirm.
ISSUE
Rivera raises one issue, which we restate as: whether the trial court abused its
discretion in sentencing him.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of December 4, 2003, fourteen-year-old Rivera went to
a hotel in Shelbyville. He ordered the desk clerk to give him money and then forced her
into a laundry room, where he raped her and forced her to engage in deviate sexual
conduct. Next, Rivera ripped a lock of hair from her head, forced her inside a large
clothes dryer, closed the door, turned it on, and stood there watching as she screamed in
pain. He only left the premises when another employee arrived for work.
The State alleged that Rivera had committed acts that, if they had been committed
by an adult, would constitute burglary resulting in bodily injury, robbery resulting in
serious bodily injury, rape, and criminal deviate conduct, all Class A felonies. The State
also claimed that he had committed acts that, if they had been committed by an adult,
would constitute criminal confinement as a Class B felony and theft as a Class D felony.
A juvenile court waived jurisdiction over Rivera.
Rivera and the State executed a plea agreement. Rivera agreed to plead guilty to
rape as a Class A felony and robbery as a Class C felony. The State agreed to dismiss the
remaining charges. The parties further agreed to a maximum aggregate sentence of thirty
2 years, with twenty years executed followed by ten years suspended, to be served on
probation. Rivera further agreed that he would comply with “all Special Sex Offender
Terms of Probation and participate in and successfully complete the Court’s Sex
Offender Management Program.” Appellant’s App. p. 92.
At a March 10, 2005 hearing, the trial court accepted the plea agreement and
sentenced Rivera to thirty years, with twenty years executed followed by ten years
suspended to probation. In addition, the court ordered him to comply with standard terms
of probation and to also comply with special probation conditions for adult sex offenders.
The standard terms of probation included following all rules of the program and
paying all fees. The standard conditions also required Rivera to avoid using drugs, to
refrain from committing another criminal offense, and to submit to drug and alcohol
screens as directed by probation staff.
The special probation conditions for adult sex offenders, which Rivera reviewed
and initialed, included a requirement to “report to your probation officer as directed.” Id.
at 101. The conditions also barred him from consuming “any controlled substance.” Id.
at 100. Finally, he was required to submit to “intensive supervision” by his probation
officer, including completion of a travel log as requested. Id. at 101.
During Rivera’s incarceration at the Indiana Department of Correction, he violated
prison rules by possessing controlled substances, possessing intoxicants, and committing
battery. In January 2012, Rivera was paroled to serve his term of probation. He was
placed on electronic monitoring as part of the sex offender management program.
3 On December 6, 2012, the State filed a petition to revoke his probation, alleging
that he failed to attend two scheduled appointments with probation personnel. The trial
court held a hearing, at which Rivera admitted to violating the terms of probation. The
court ordered him to serve ten days of his previously-suspended sentence.
On January 24, 2013, the State filed a second petition to revoke Rivera’s
probation, alleging that he again failed to attend a scheduled appointment with probation
personnel. The trial court held a hearing, at which Rivera again admitted to violating the
terms of probation. The court ordered him to serve ninety days of his previously-
suspended sentence.
Rivera served his ninety-day sentence and was released to continue on probation
and sex offender monitoring. On July 22, 2013, the State began this case by filing a third
petition to revoke Rivera’s probation, alleging that he had violated the terms of probation
by testing positive for methamphetamine.
Next, the State amended the petition to revoke, alleging that he had also traveled
to unapproved locations in violation of the rules of the sex offender management
program. Electronic monitoring revealed that he had driven to several locations, other
than his home and his place of work, without first notifying probation officers.
Later, the State again amended the July 22, 2013 petition, alleging that Rivera had
tested positive for methamphetamine a second time and had also tested positive for
ecstasy, in violation of both the terms of probation and the rules of the sex offender
management program. A report attached to the second amended petition indicated that
Rivera had appeared at a sex offender management meeting in a disoriented state,
4 claiming that a murder had occurred at his apartment building. Officers found no
evidence of a murder, and after he submitted to a drug screen they found
methamphetamine and ecstasy in his system.
During a January 16, 2014 hearing, Rivera admitted that he had violated the terms
of probation and the rules of the sex offender management program as alleged by the
State. He specifically admitted that he had consumed methamphetamine and ecstasy and
that he had driven to unauthorized locations.
The trial court held a dispositional hearing on March 13, 2014. After hearing
evidence and argument, the court sentenced Rivera to serve seven years of his previously
suspended sentence, minus credit for time served. The court further ordered that Rivera
would resume probation and sex offender monitoring upon his release from incarceration.
This appeal followed.
DISCUSSION AND DECISION
Rivera claims that the seven-year sentence is an abuse of discretion because he
admitted to the violations, acknowledged his substance abuse problems, and requested
treatment.
A defendant is not entitled to serve a sentence in a probation program; rather, such
placement is a matter of grace. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App.
2011), trans. denied. If a trial court determines that a probationer has violated a term of
probation, the court may impose one or more of the following sanctions:
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Nov 26 2014, 9:24 am 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:
GILDA W. CAVINESS GREGORY F. ZOELLER Caviness Law Office, LLC Attorney General of Indiana Rushville, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JORDAN RIVERA, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1404-CR-156 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT The Honorable Charles D. O’Connor, Judge Cause No. 73C01-0402-FA-1
November 26, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Jordan Rivera appeals the sentence the trial court imposed after Rivera admitted to
violating the terms of his probation. We affirm.
ISSUE
Rivera raises one issue, which we restate as: whether the trial court abused its
discretion in sentencing him.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of December 4, 2003, fourteen-year-old Rivera went to
a hotel in Shelbyville. He ordered the desk clerk to give him money and then forced her
into a laundry room, where he raped her and forced her to engage in deviate sexual
conduct. Next, Rivera ripped a lock of hair from her head, forced her inside a large
clothes dryer, closed the door, turned it on, and stood there watching as she screamed in
pain. He only left the premises when another employee arrived for work.
The State alleged that Rivera had committed acts that, if they had been committed
by an adult, would constitute burglary resulting in bodily injury, robbery resulting in
serious bodily injury, rape, and criminal deviate conduct, all Class A felonies. The State
also claimed that he had committed acts that, if they had been committed by an adult,
would constitute criminal confinement as a Class B felony and theft as a Class D felony.
A juvenile court waived jurisdiction over Rivera.
Rivera and the State executed a plea agreement. Rivera agreed to plead guilty to
rape as a Class A felony and robbery as a Class C felony. The State agreed to dismiss the
remaining charges. The parties further agreed to a maximum aggregate sentence of thirty
2 years, with twenty years executed followed by ten years suspended, to be served on
probation. Rivera further agreed that he would comply with “all Special Sex Offender
Terms of Probation and participate in and successfully complete the Court’s Sex
Offender Management Program.” Appellant’s App. p. 92.
At a March 10, 2005 hearing, the trial court accepted the plea agreement and
sentenced Rivera to thirty years, with twenty years executed followed by ten years
suspended to probation. In addition, the court ordered him to comply with standard terms
of probation and to also comply with special probation conditions for adult sex offenders.
The standard terms of probation included following all rules of the program and
paying all fees. The standard conditions also required Rivera to avoid using drugs, to
refrain from committing another criminal offense, and to submit to drug and alcohol
screens as directed by probation staff.
The special probation conditions for adult sex offenders, which Rivera reviewed
and initialed, included a requirement to “report to your probation officer as directed.” Id.
at 101. The conditions also barred him from consuming “any controlled substance.” Id.
at 100. Finally, he was required to submit to “intensive supervision” by his probation
officer, including completion of a travel log as requested. Id. at 101.
During Rivera’s incarceration at the Indiana Department of Correction, he violated
prison rules by possessing controlled substances, possessing intoxicants, and committing
battery. In January 2012, Rivera was paroled to serve his term of probation. He was
placed on electronic monitoring as part of the sex offender management program.
3 On December 6, 2012, the State filed a petition to revoke his probation, alleging
that he failed to attend two scheduled appointments with probation personnel. The trial
court held a hearing, at which Rivera admitted to violating the terms of probation. The
court ordered him to serve ten days of his previously-suspended sentence.
On January 24, 2013, the State filed a second petition to revoke Rivera’s
probation, alleging that he again failed to attend a scheduled appointment with probation
personnel. The trial court held a hearing, at which Rivera again admitted to violating the
terms of probation. The court ordered him to serve ninety days of his previously-
suspended sentence.
Rivera served his ninety-day sentence and was released to continue on probation
and sex offender monitoring. On July 22, 2013, the State began this case by filing a third
petition to revoke Rivera’s probation, alleging that he had violated the terms of probation
by testing positive for methamphetamine.
Next, the State amended the petition to revoke, alleging that he had also traveled
to unapproved locations in violation of the rules of the sex offender management
program. Electronic monitoring revealed that he had driven to several locations, other
than his home and his place of work, without first notifying probation officers.
Later, the State again amended the July 22, 2013 petition, alleging that Rivera had
tested positive for methamphetamine a second time and had also tested positive for
ecstasy, in violation of both the terms of probation and the rules of the sex offender
management program. A report attached to the second amended petition indicated that
Rivera had appeared at a sex offender management meeting in a disoriented state,
4 claiming that a murder had occurred at his apartment building. Officers found no
evidence of a murder, and after he submitted to a drug screen they found
methamphetamine and ecstasy in his system.
During a January 16, 2014 hearing, Rivera admitted that he had violated the terms
of probation and the rules of the sex offender management program as alleged by the
State. He specifically admitted that he had consumed methamphetamine and ecstasy and
that he had driven to unauthorized locations.
The trial court held a dispositional hearing on March 13, 2014. After hearing
evidence and argument, the court sentenced Rivera to serve seven years of his previously
suspended sentence, minus credit for time served. The court further ordered that Rivera
would resume probation and sex offender monitoring upon his release from incarceration.
This appeal followed.
DISCUSSION AND DECISION
Rivera claims that the seven-year sentence is an abuse of discretion because he
admitted to the violations, acknowledged his substance abuse problems, and requested
treatment.
A defendant is not entitled to serve a sentence in a probation program; rather, such
placement is a matter of grace. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App.
2011), trans. denied. If a trial court determines that a probationer has violated a term of
probation, the court may impose one or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
5 (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) (2012). Subject to these statutory guidelines, a trial court’s
sentencing decision for a probation violation is reviewable using the abuse of discretion
standard. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App. 2013), trans. denied.
An abuse of discretion occurs where the decision is clearly against the logic and effect of
the facts and circumstances. Id.
Here, the record reflects that Rivera received a substantial opportunity in being
permitted to serve one-third of his sentence on probation, instead of facing a longer
executed sentence for his brutal crimes. Instead of taking advantage of the opportunity to
reform, Rivera repeatedly violated the terms of probation and the rules of the sex
offender management program. For his first violation, missing scheduled probation
appointments, the court imposed a relatively restrained sentence of ten days. For the
second violation, missing another scheduled probation appointment, the court imposed a
longer sentence of ninety days. Probation officials and the trial court hoped the ninety-
day sentence would induce Rivera to comply with the rules. Tr. pp. 13, 35.
Rivera continued to ignore opportunities for him to correct his behavior that were
extended by the court. Instead, his violations became more severe, escalating from
missing probation appointments to using controlled substances and violating the terms of
the sex offender management program by going places without prior authorization.
Rivera’s probation officer considered Rivera’s unauthorized movements to be a “major
6 violation” because it is important to track a sex offender’s location. Id. at 17. In
addition, use of controlled substances is a criminal offense in addition to a violation of
the terms of probation and the rules of the sex offender management program.
Rivera’s probation officer stated that because Rivera had failed to benefit from
substance abuse classes and sex offender management and supervision, she had no other
services to offer him to encourage his rehabilitation. She concluded that he was unlikely
to be successful in further probation and presented a danger to the community.
Rivera has demonstrated an unwillingness to comply with the terms of probation
and the sex offender management program. Even with this extensive evidence, the court
declined the State’s request to impose the full suspended sentence upon Rivera, ordering
him to serve seven rather than ten years. Under these circumstances, we cannot conclude
that imposing a seven-year sentence amounts to an abuse of the sentencing discretion
granted to the trial court. See Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App.
2009) (no abuse of discretion in imposing entire previously-suspended sentence where
probationer was found to have possessed a controlled substance).
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
NAJAM, J., and CRONE, J., concur.