Johnnie A. Winners v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 02 2016, 8:31 am
regarded as precedent or cited before 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
Donald C. Swanson, Jr. Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnnie A. Winners, February 2, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1505-CR-335
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
The Honorable Samuel R. Keirns,
Magistrate
Trial Court Cause No.
02D04-0709-FC-226
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Johnnie A. Winners (Winners), appeals the imposition of
his previously suspended sentence after the trial court revoked his probation.
[2] We affirm.
ISSUE
[3] Winners raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion by ordering Winners to serve his previously
suspended sentence after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On January 11, 2008, Winners pled guilty to Count I, forgery, a Class C felony
and Count II, theft, a Class D felony. On Count I, Winners was sentenced to
six years at the Department of Correction (DOC), with four years executed and
the remaining two years suspended to probation. As for Count II, Winners was
sentenced to two and one-half years executed. Winners’ sentences were to run
concurrently. The trial court’s order of probation issued on the same day
explicitly required Winners to behave well and to refrain from possessing
weapons or firearms as the terms and conditions of his probation.
[5] On October 24, 2011, a Verified Petition for Revocation of Probation was filed
as a result of Winners’ termination “from the ReEntry Court Program in
consecutive cause number 02D04-0712-FC-309.” (Appellant’s App. p. 14).
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After a probation violation hearing on December 20, 2011, Winners’ probation
was extended by two years.
[6] On February 5, 2015, Jemal Cooper (Cooper) was helping Winners’ daughter,
Jamie Winners (Jamie), to move her possessions out of her grandmother’s
house on New Heaven Avenue in Fort Wayne. Winners and his brother,
Steven Winners (Steven), were also present. At some point, Jamie and Steven
started arguing. The argument quickly escalated to the point where Steven
grabbed Jamie by the neck and started choking her. Cooper attempted to pull
Steven off of Jamie, and Steven punched Cooper. Steven then called Winners
for help, who also punched Cooper. Cooper and Jamie ran out the door.
Steven urged Winners to kill Cooper. Winners retrieved a shotgun, came out of
the house, and aimed the shotgun directly at Cooper. Cooper and Jamie fled to
the neighbor’s house and called the police.
[7] On February 6, 2015, the Allen County Adult Probation Department filed a
Verified Petition for Revocation of Probation alleging that Winners violated his
probation by committing battery and possessing a firearm. On April 9, 2015,
the trial court held a probation revocation hearing and found that Winners had
violated the terms and conditions of his probation. The trial court ordered
Winners to serve two years of his previously suspended sentence in the DOC.
[8] Winners now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
[9] Winners claims that the trial court abused its discretion by revoking his
probation. It is well established that probation is a favor granted by the State
and is not a right to which a criminal defendant is entitled. Sparks v. State, 983
N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies
within the sound discretion of the trial court. Id. Thus, a trial court’s decision
to revoke probation and its subsequent sentencing decision are reviewed for an
abuse of discretion. Id.[10] Once a trial court has concluded that probation has been violated, it may
continue the defendant on probation, extend the probationary period for not
more than one year beyond the original period, or order all or part of the
previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).
[11] Winners alleges that the circumstances surrounding his present probation
violation do not warrant the imposition of the entire balance of his previously-
suspended sentence. Specifically, he argues that the incident occurred between
the family members, he never discharged the firearm, and no one was injured.
He claims that Cooper did not even feel any pain as a result of his strikes.
Winners concludes that this incident was not the kind of incident that would
warrant the “harshest punishment under Indiana law.” (Appellant’s Br. p. 5).
[12] We disagree. One of the conditions to Winners’ probation was that he
refrained from committing new offenses. In addition, Winners was prohibited
from possessing a firearm. Winners signed the order of probation and was fully
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aware of these basic rules. Winners should have followed them: he could have
left the scene, or called the police, or even attempted to dissuade Steven from
choking Jamie. Winners, however, did not do any of that. Instead, he willingly
entered into a fight between Steven, who was battering Jamie, and Cooper, who
was trying to stop the battery. He effectively assisted Steven by striking Cooper.
When Cooper and Jamie fled from the house, Winners chose to arm himself
with a shotgun, follow Cooper and Jamie out of the house, and aim the shotgun
at Cooper. Winners’ battery of Cooper and possession of a firearm violated the
two basic rules of his probation.
[13] Moreover, this was not his first violation of probation. In 2011, Winners
violated the terms and conditions of his probation in the current case by being
terminated from the ReEntry Court Program. However, even then, his
probation was not revoked; he was given leniency and was returned to
probation with an extension of two years.
[14] As such, because probation is a matter of grace and the fact that Winners
violated his probation twice, the trial court’s decision to stop awarding favors to
Winners in the light of his behavior is appropriate under the circumstances and
well within the trial court’s sound discretion.
CONCLUSION
[15] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in revoking Winners’ probation.
[16] Affirmed.
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[17] Najam, J. and May, J. concur
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