Michael Elsbury v. State of Indiana (mem. dec.) ( 2017 )

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.
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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
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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.
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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
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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.
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