Gregory Jones v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 09 2019, 9:19 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Jones, December 9, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1526
v. Appeal from the Wells Circuit
Court
State of Indiana, The Hon. Kenton W. Kiracofe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
90C01-1009-FC-14
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019 Page 1 of 10
Case Summary
[1] In 2011, Gregory Jones pled guilty to Class C felony non-support of a
dependent, and the trial court imposed a four-year suspended sentence and
eight years of probation, the terms of which included faithful payment of child
support. In 2015, the State filed a notice of violation of the terms of probation
in which it alleged that Jones was in arrears in his child-support payments.
Jones admitted the violation. In 2019, after many delays, the trial court ordered
Jones to serve his previously-suspended four-year sentence. Jones contends that
the trial court abused its discretion in revoking his probation because the State
failed to establish that his failure to pay child support was intentional, knowing,
or reckless. Because we disagree, we affirm.
Facts and Procedural History
[2] As of July of 2010, Jones was behind over $17,000.00 in child-support
payments for the two children he had with Samantha Miller. On September 22,
2010, the State charged Jones with two counts of Class C felony non-support of
a dependent child. On August 8, 2011, Jones pled guilty to one count of non-
support of a dependent child. On October 27, 2011, pursuant to a written plea
agreement, the trial court sentenced Jones to four years of incarceration, all
suspended, and eight years of probation.
[3] On February 13, 2015, the State filed a second petition for the revocation of
Jones’s probation, alleging that he had failed to pay child support consistent
with the terms of his probation. On September 16, 2015, the trial court held a
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hearing on the State’s second petition at which Jones admitted, and the trial
court found, that he had failed to pay child support as ordered. At some point
in 2015, Jones applied for disability benefits, which were denied. In February
of 2019, Jones reapplied for disability benefits, claiming that he was disabled as
of April 26, 2018.
[4] On June 26, 2019, following several continuances, the trial court held an
evidentiary hearing. The State admitted evidence that Jones’s arrearage had
increased to approximately $24,300.00, and Jones admitted that his last
payment had been made in June of 2015. On June 28, 2019, the trial court
ordered Jones’s probation be revoked and that he serve his previously-
suspended four-year sentence.
Discussion and Decision
[5] Jones argues that the trial court abused its discretion in revoking his probation.
“Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007) (citing Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005)). The
Indiana Supreme Court has held that “a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard[,]”
explaining that
[o]nce a trial court has exercised its grace by ordering probation
rather than incarceration, the judge should have considerable
leeway in deciding how to proceed. If this discretion were not
afforded to trial courts and sentences were scrutinized too
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severely on appeal, trial judges might be less inclined to order
probation to future defendants.
Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).
[6] An abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Id. As long as the proper procedures have
been followed in conducting a probation revocation hearing, “the trial court
may order execution of a suspended sentence upon a finding of a violation by a
preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.
App. 1999). Before the trial court may revoke probation due to a defendant’s
failure to pay child support, the State must prove both a violation of the terms
of probation occurred and that the violation was due to the defendant reckless,
knowing, or intentional failure to pay child support. Runyon v. State, 939
N.E.2d 613, 617 (Ind. 2010); Ind. Code § 35-38-2-3(g).
[7] Where a violation of the terms of probation has been established, Indiana Code
subsection 35-38-2-3(h)(3) allows the trial court to “[o]rder execution of all or
part of the sentence that was suspended at the time of initial sentencing” and
the “[c]onsideration and imposition of any alternatives to incarceration is a
‘matter of grace’ left to the discretion of the trial court.” Monday v. State, 671
N.E.2d 467, 469 (Ind. Ct. App. 1996). “When reviewing an appeal from the
revocation of probation, we consider only the evidence most favorable to the
judgment, and we will not reweigh the evidence or judge the credibility of the
witnesses.” Vernon v. State, 903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans
denied.
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[8] While Jones concedes that he owes a substantial sum of child support, he
contends that the State failed to establish that his failure to satisfy his
obligations was reckless, knowing, or intentional. “A person engages in
conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious
objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person engages
in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and
unjustifiable disregard of harm that might result and the disregard involves a
substantial deviation from acceptable standards of conduct.” Ind. Code § 35-
41-2-2(c).
[9] First and foremost, all of Jones’s evidence presented at his dispositional hearing
addressed the time following the State’s petition to revoke his suspended
sentence and probation. Put another way, Jones’s evidence only attempted to
excuse Jones’s failure to pay after 2015 and has nothing to do with the missed
payments on which his probation violation was actually based. On this basis
alone, we conclude that the trial court did not abuse its discretion by revoking
Jones’s probation. Jones presented no evidence whatsoever tending to establish
that, prior to the filing of the petition to revoke his probation in February of
2015, “his income was such that he was unable to pay support as ordered.”
Smith v. State, 963 N.E.2d 1110, 1114 (Ind. 2012).
[10] Furthermore, the evidence Jones presented at his dispositional hearing, even if
credited fully, did not establish that he was unable to pay child support
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following his admission. Although Jones presented evidence that he twice
applied for disability benefits, his first application in 2015 was denied. This
denial supports a finding that Jones was not actually disabled until at least April
26, 2018, the disability date claimed in his second application, which was still
pending on the date of the dispositional hearing. As for his condition on that
date, Jones testified that he is a gunshot victim who suffers from depression,
anxiety, “PSD [sic],” a “foot issue,” and “pantaritis [sic]” limiting his ability to
stand to one-and-a-half hours at a time. Tr. Vol. II p. 133. Even if all of this is
true, Jones does not explain how his conditions would prevent him from
finding any work at all. Indeed, Jones conceded that he is in fact able to work,
i.e., he helps his mother around the house and does yard work in lieu of paying
rent.
[11] We, however, digress. To reiterate, even if the trial court had been required to
credit all of Jones’s evidence, which it was not, it would not help him because
none of that evidence has anything to do with the violations for which his
probation was actually revoked. Jones has not established that he was unable
to comply with his child support obligations prior to February of 2015, and as a
result, the trial court did not abuse its discretion by revoking his probation and
suspended sentence.
[12] We affirm the judgment of the trial court.
Vaidik, C.J., concurs.
Riley, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019 Page 6 of 10
IN THE
COURT OF APPEALS OF INDIANA
Gregory Jones, Court of Appeals Case No.
19A-CR-1526
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Riley, Judge dissenting
[13] I respectfully dissent from the majority’s conclusion that the trial court’s
decision to imprison Jones was a proper exercise of its discretion. Jones
admitted at the September 16, 2015, hearing on the second petition to revoke
his probation that he had failed to pay his child support obligation as alleged by
the State. These admissions were adequate to support a finding that he
knowingly or intentionally violated his probation. See Runyon, 939 N.E.2d at
617. However, in spite of his admissions, Jones was entitled to present
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mitigating evidence regarding his inability to pay and his bone fide efforts to do
so in an effort to persuade the trial court that it should not imprison him. Id.
[14] Jones testified at his June 26, 2019, dispositional hearing that he had been
unable to work or pay support since 2015 because he was the victim of a
shooting who suffered from depression, PTSD, and anxiety. Jones also had a
physical ailment that prevented him from standing for more than an hour and a
half at a time. Contrary to the majority’s implication, other facts apart from
Jones’ dispositional hearing testimony supported the existence of Jones’ mental
health conditions. At an August 26, 2015, status hearing, Jones’ counsel
represented to the trial court that Jones had been hospitalized for a mental
health episode, and at the next hearing in the matter, Jones brought
documentation of his hospitalization that was accepted by the trial court. In
addition, at a July 6, 2016, status hearing, the prosecutor was provided with
documentation of a mental health examination Jones underwent as part of his
ongoing efforts to procure disability benefits, outlined more fully below. After
reviewing the documents, the prosecutor commented that they indicated Jones
had “major limitation in his mental residual functional capacity, which means
there’s—there are issues.” (Transcript Vol. II, p. 110). Jones was without
savings, assets, or a vehicle. Jones had lived with his mother in Georgia since
2015 and rode the bus back to Indiana twenty-five hours each way to attend the
hearings in this matter.
[15] Jones also presented evidence of his bone fide efforts to pay support. Beginning
in 2015, Jones pursued disability benefits which he believed could be used in
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part to meet his support obligations. His first application was denied, and Jones
pursued appeals from that denial. Ultimately, those appeals failed. Jones
reapplied for disability in February of 2019, and that reapplication was still
pending as of the dispositional hearing in this matter.
[16] The majority finds these facts to be irrelevant to the instant appeal because they
occurred after the second petition to revoke was filed. However, the State
presented evidence at the June 26, 2019, dispositional hearing as to Jones’
arrears to date, not simply his arrears as of the filing of the petition to revoke.
As previously noted, Jones was entitled to present this evidence to the trial
court prior to disposition to explain why he should not be imprisoned for his
admitted failure to pay. In addition, the majority implies that the fact that
Jones averred in his February 2019 disability reapplication, admitted into
evidence at the dispositional hearing as Defendant’s Exhibit A, that he was
disabled as of April 26, 2018, undercut his claim of disability as of 2015.
However, Jones claimed April 26, 2018, as his date of disability on the
February 2019 disability reapplication because that was one day after the
administrative judge had denied his previous disability application, not because
he claimed April 26, 2018, as his historic date of disability.
[17] In light of this evidence of Jones’ inability to pay, his bone fide efforts to
procure disability benefits to pay his support, and the fact that Jones had no
other allegations of violations filed against him in either Georgia or Indiana
despite this matter pending for over four years, I conclude that the trial court’s
decision to imprison Jones for four years was against the facts and
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circumstances of this case and was, therefore, an abuse of its discretion. For
these reasons, I respectfully dissent.
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