Jerry E. Jones v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 07 2019, 10:14 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
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry E. Jones, March 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2483
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03C01-1102-FB-887
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Jerry Jones (Jones), appeals from the sanction imposed
by the trial court following the revocation of his probation.
[2] We affirm.
ISSUE
[3] Jones presents one issue on appeal: Whether the trial court abused its
discretion when it ordered him to serve the entirety of his previously-suspended
sentence.
FACTS AND PROCEDURAL HISTORY
[4] On February 14, 2011, the State filed an Information, charging Jones with two
Counts of Class B felony dealing in a schedule II controlled substance. On June
29, 2011, Jones pleaded guilty to one Count of Class B felony dealing in a
schedule II controlled substance, and the trial court sentenced him to twelve
years with the Department of Correction (DOC), with four years suspended to
probation. The trial court found as aggravating circumstances that Jones was
on probation at the time he committed the offense, his previous opportunities
for treatment had not been effective, and the offense was Jones’ third felony
conviction. The date of Jones’ completion of his sentence and release to
probation is not part of the record on appeal.
[5] On March 7, 2017, the State filed a petition to revoke Jones’ probation, alleging
that he had been arrested for the new offense of theft on January 25, 2017, in
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Johnson County. On August 21, 2017, the State filed an amended petition to
revoke Jones’ probation, alleging that he had committed the new offense of
operating a motor vehicle while intoxicated on August 11, 2017. On October 9,
2017, the State amended its petition a second time to include an allegation that
Jones had committed the new offenses of aggravated battery, domestic battery
while children were present, domestic battery, and criminal trespass on October
4, 2017, in Johnson County.
[6] On May 31, 2018, the trial court held Jones’ probation revocation hearing.
Jones admitted that he had committed the new offenses, and the trial court
revoked his probation. 1 On September 13, 2018, the trial court held Jones’
dispositional hearing. By then Jones had pleaded guilty to, and been sentenced
for, Level 6 felony theft, battery, and domestic battery. His new operating a
motor vehicle while intoxicated charge was still pending. Jones testified that
his conviction for theft for stealing a Lego set was the result of his wife leaving
the store without telling him, causing him to seek her out past the point of sale
without purchasing the toy. Jones also admitted that he had abused opiates,
Xanax, and marijuana while on probation and that his wife’s act of flushing his
Xanax down the toilet angered him on the day he committed the new battery
offenses. However, Jones denied hitting his wife. Jones felt that he was in need
of substance abuse treatment which he had never received.
1
A transcript of this hearing is not part of the record on appeal. It is unclear from the record whether Jones
had already pleaded guilty to any of his new charges by the date of his revocation hearing.
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[7] At the conclusion of the hearing, the trial court found that Jones was in need of
the structured substance abuse treatment that would be available to him with
the DOC. The trial court also found that Jones had been convicted originally of
a dealing offense and that his newest convictions were felonies. The trial court
ordered Jones to serve the four-year balance of his previously-suspended
sentence.
[8] Jones now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] It is well-settled that probation is a matter of grace which is left to the trial
court’s discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). In
exercising that discretion, the trial court may determine probation conditions
and revoke probation if those conditions are violated. Id. If a trial court
revokes probation, it may continue the person on probation, extend the
probationary period for not more than one year, or order the execution of all or
part of the previously-suspended sentence. Ind. Code § 35-38-2-3(h). The trial
court has considerable leeway in deciding how to proceed in probation matters.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). If this were not so, trial court
judges would be less inclined to order probation for defendants. Id. In light of
this considerable leeway, “a trial court’s sentencing decisions for probation
violations are reviewable using the abuse of discretion standard.” Id. An abuse
of discretion occurs where the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it. Id.Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 4 of 6
[10] Here, Jones had a significant criminal history and had his probation revoked on
at least one occasion in the past. Jones was given yet another chance in the
community when he was granted probation in this case, but while exercising
that conditional freedom, he had three sets of new contacts with the criminal
justice system, resulting in three new felony convictions. Two of those new
convictions involved violence. Jones has a long history of substance abuse and
was offered treatment through his various contacts with the criminal justice
system in 2000, 2004, 2009, and 2010. Jones did not avail himself of those
opportunities and admitted to abusing opiates, Xanax, and marijuana while on
probation in this case. Given these circumstances, we cannot conclude that it
was an abuse of the trial court’s discretion to order Jones to serve his
previously-suspended four-year sentence.
[11] Jones argues that the trial court abused its discretion when it failed to consider
his admissions to the new offenses as a mitigating sentencing factor. However,
a trial court is not obligated to consider mitigating and aggravating
circumstances when imposing a probation revocation sanction. See Treece v.
State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied; see also Porter v. State,
2018 WL 6839398, at *2 (Ind. Ct. App., Dec. 31, 2018) (rejecting Porter’s
argument that the trial court should have accorded mitigating weight to his
admission at his probation revocation hearing to a new offense). Even so, at his
dispositional hearing, Jones attempted to shift blame for the theft offense and
denied battering his wife, offenses to which he had already pleaded guilty. We
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019 Page 5 of 6
find no abuse of discretion on the part of the trial court. Prewitt, 878 N.E.2d at
188.
CONCLUSION
[12] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it ordered Jones to serve his previously-suspended four-year
sentence.
[13] Affirmed.
[14] Kirsch, J. and Robb, J. concur
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