Jerrimica T. Madding v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jul 15 2014, 10:30 am
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:
MICHAEL P. QUIRK GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
LYUBOV GORE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERRIMICA T. MADDING, )
)
Appellant-Defendant, )
)
vs. ) No. 18A04-1312-CR-608
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
Cause No. 18C01-1001-FC-1
July 15, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Jerrimica T. Madding (Madding), appeals the trial court’s
revocation of his probation and the imposition of his previously suspended sentence.
We affirm.
ISSUE
Madding raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by ordering Madding to serve his previously suspended sentence
after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
On January 15, 2010, the State filed an Information charging Madding with non-
support of a child, a Class C felony, alleging that he owed at least $15,000.00 in child
support payments. On June 7, 2010, Madding entered into a plea agreement with the
State and agreed to plead guilty to the lesser included offense of a Class D felony non-
support of a child. Pursuant to the terms of the plea agreement, the trial court sentenced
him to three years, suspended to probation. As further conditions of his probation,
Madding was ordered to, among others, not commit any other crimes, pay court costs and
probation user fees, and make weekly child support payments of $52.83, as well as an
additional $15.00 in arrears.
On September 21, 2012, the State filed a petition to revoke Madding’s probation,
asserting that Madding failed to report to his probation officer and pay his child support
obligation. During the fact finding hearing on June 10, 2013, Madding admitted to the
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violations. The trial court revoked his probation but set the dispositional hearing for
September 16, 2013, “to see if [Madding] continues to report and comply.” (Transcript p.
5). On November 13, 2013, after resetting the dispositional hearing several times, the
trial court noted that Madding had only paid $12.001 in child support since the State had
filed its petition to revoke probation and concluded that Madding had received ample
opportunity to find continued employment and to pay his child support as ordered. The
trial court also found that Madding had “worked for at least four different employers and
did not pay support as ordered;” instead Madding was “using his income to support his
girlfriend’s children[.]” (Appellant’s App. p. 59). As a result, the trial court sentenced
Madding to three years executed, his entire previously suspended sentence.
Madding now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Without disputing the validity of the revocation of his probation, Madding
contends that the trial court abused its discretion by imposing his entire previously
suspended sentence because this sentence is inappropriate in light of the nature of the
offense and the character of the offender under Indiana Appellate Rule 7(B).
Specifically, Madding maintains that the imposed sentence is inappropriate because he
“complied with every rule of probation except the payment of child support.”
(Appellant’s Br. p. 5).
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Although the trial court in its order only references a payment of $12, the transcript also includes
testimony that Madding made a child support payment of $100 on June 22, 2013.
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Indiana Appellate Rule 7(B) permits an appellate determination of the
appropriateness of a criminal sentence and implements the permissive jurisdiction
granted in Article 7, Section 4 of the Indiana Constitution. Jones v. State, 885 N.E.2d
1286, 1290 (Ind. 2008). However, this appellate evaluation is not the correct standard to
apply when reviewing a trial court’s action in a post-sentence probation violation
proceeding. Prewitt v. State, 878 N.E.2d 184, 187-88 (Ind. 2007). A trial court’s action
in a post-sentence probation violation proceeding is not a criminal sentence as
contemplated by Ind. Appellate Rule 7(B) and therefore the review and revise remedy of
this rule is not available. Id. Probation violation sanctions are subject to appellate review
for an abuse of discretion. Id. at 188.
Probation is a matter of grace left to the trial court’s discretion, not a right to
which a criminal defendant is entitled. Id. The trial court determines the conditions of
probation and may revoke probation if the conditions are violated. Id. Once a trial court
has exercised its grace by ordering probation rather than incarceration, the trial court
should have considerable leeway in deciding how to proceed. Id. If this discretion were
not afforded to the trial court and sentences were scrutinized too severely on appeal, a
trial court may be less inclined to order probation to future defendants. Id. Accordingly,
a trial court’s sentencing decisions for probation violations are reviewable using the
abuse of discretion standard. Id. An abuse of discretion occurs when the decision is
clearly against the logic and effect of the facts and circumstances. Id.
On January 15, 2010, Madding was charged with non-support of a child after
determining that he owed at least $15,000.00 in child support payments. He entered into
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a plea agreement on June 7, 2010, and was ordered to make weekly child support
payments of $52.83, as well as an additional $15.00 in arrears, as part of his terms of
probation. The evidence reflects that his last payment of child support was in March
2012. In September 2012, the State filed its petition to revoke probation—Madding did
not contest the petition. From September 2012 onwards, Madding only made two child
support payments of $12.64 and $100 on June 7 and June 22, 2013, respectively. Despite
his delinquent history of non-payment of child support, the trial court granted Madding
leniency during the fact finding hearing on June 10, 2013 by allowing him another ninety
days to start complying with the terms of his probation. However, Madding did not make
any more child support payments between the fact finding hearing and the dispositional
hearing of November 12, 2013. During this hearing, Madding admitted that despite being
employed from at least midsummer to October 2013, he had foregone his obligation to
his own child and instead supported his girlfriend’s children, to which he was not the
biological father.
In addition to not paying his child support as ordered, Madding also failed to
report to his probation officer and only called to reschedule his appointments after
receiving a reminder. Mindful of the trial court’s discretion and given Madding’s
probation violations, the trial court’s decision is not clearly against the logic and effect of
the facts and circumstances. See Prewitt, 878 N.E.2d at 188.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by revoking Madding’s probation and imposing a three year executed sentence.
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Affirmed.
ROBB, J. and BRADFORD, J. concur
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