Michael Elsbury v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 15A01-1703-CR-449
• 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 Jul 31 2017, 8:42 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 Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Elsbury, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 15A01-1703-CR-449 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-0809-FD-206

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017 Page 1 of 5 Statement of the Case [1] After Michael Elsbury (“Elsbury”) admitted that he had violated his probation,

the trial court revoked two years of his previously suspended two and one-half

year sentence. Elsbury now contends that the trial court abused its discretion in

revoking two years of his suspended sentence. Finding no error, we affirm the

trial court’s judgment.

[2] We affirm.

Issue The sole issue for our review is whether the trial court abused its discretion in revoking two years of Elsbury’s previously suspended sentence.

Facts [3] In 2005, Elsbury was convicted of Class B felony child molesting. The trial

court sentenced him to ten (10) years with eight (8) years suspended to

probation. In 2008, Elsbury was convicted of Class D felony failure to register

as a sex offender. The trial court sentenced him to three (3) years with two and

one-half (2½) years suspended to probation. Elsbury was subsequently

convicted of Class C felony failure to register as a sex offender.

[4] In 2011, Elsbury was convicted in Ohio of two counts of non-support of a

dependent as fifth degree felonies. In 2014, he transferred his probation to

Florida so that he could live with his mother and stepfather. While he was

living in Florida, Elsbury was convicted of two felonies for failing to register his

Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017 Page 2 of 5 email and mobile phone number as a sex offender. Indiana filed a petition to

revoke his probation in the 2008 Class D felony based on these two Florida

convictions.

[5] At the probation revocation hearing, Elsbury testified that he had twice violated

his probation while serving his sentence for the 2005 Class B felony. He further

testified that he had also violated probation and parole for the Class C felony.

Elsbury also admitted that he had violated his probation for the Class D felony

conviction by committing the two additional felonies in Florida. He further

admitted that he had not been taking the registration requirements as seriously

as he should have been. Elsbury also explained that he wanted to obtain his

GED and go to welding school.

[6] Following the hearing, the trial court stated as follows:

Due to the repeatedly similar nature of the probation violations, the serious nature of the underlying conviction being child molesting a Class B felony, the Court finds that the culpability of [Elsbury] for continued failing to register is high. The severity of the crime, the B felony child molesting and then now there are three convictions for failing to register, three probation violations, a parole violation. The severity of the crime is high.

(Tr. 35). The trial court then revoked two years of Elsbury’s previously

suspended two and one-half-year sentence. Elsbury appeals.

Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017 Page 3 of 5 Decision [7] Elsbury’s sole argument is that the trial court abused its discretion in revoking

two years of his previously suspended sentence. Upon determining that a

probationer has violated a condition of probation, the trial court may “[o]rder

execution of all or part of the sentence that was suspended at the time of initial

sentencing.” IND. CODE § 35-38-2-3(h)(3). “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.” Prewitt v. State, 878 N.E.2d

184, 188 (Ind. 2007). “If this discretion were not given to trial courts and

sentences were scrutinized too severely on appeal, trial judges might be less

inclined to order probation to future defendants.” Id. As a result, we review a

trial court’s sentencing decision from a probation revocation for an abuse of

discretion. Id. An abuse of discretion occurs where the decision is clearly

against the logic and effect of the facts and circumstances. Id.

[8] The record reveals that the trial court had ample basis for its decision to revoke

two years of Elsbury’s previously suspended sentence. Significantly, as the

State points out, Elsbury “committed two new felony offenses for failing to

comply with registry requirements while he was on probation for a crime which

was itself a registry violation.” (Elsbury’s Br. 8). In addition, we note that

Elsbury was convicted of a Class B felony, which was followed by two

probation violations. He also had three convictions for failure to register, three

probation violations, and a parole violation. Based on this evidence, we

Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017 Page 4 of 5 conclude that the trial court did not abuse its discretion when it revoked two

years of Elsbury’s previously suspended sentence.

[9] Affirmed.

Riley, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017 Page 5 of 5