Jonathon P. Grigsby v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
FILED
Dec 26 2012, 9:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
case. of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt, Attorney General of Indiana
Wilkinson & Drummy, LLP
Terre Haute, Indiana KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JONATHON P. GRIGSBY, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1205-CR-238
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause Nos. 84D03-0903-FB-825, 84D03-0904-FD-1142, 84D03-0904-FD-1143
December 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Jonathon Grigsby appeals the reinstatement of his previously suspended sentence
following the revocation of his probation. Grigsby raises one issue which we revise and
restate as whether the trial court abused its discretion in ordering that Grigsby serve his
previously suspended sentence. We affirm.
The relevant facts follow. On September 28, 2010, Grigsby pled guilty to robbery
as a class C felony under Cause No. 84D03-0903-FB-825 (“Cause No. 825”), domestic
battery as a class D felony under Cause No. 84D03-0904-FD-1142 (“Cause No. 1142”),
and theft as a class D felony under Cause No. 84D03-0904-FD-1143 (Cause No. 1143”).
On November 15, 2010, the court held a sentencing hearing and sentenced Grigsby to a
total of eleven years on his convictions with seven of the eleven years suspended to
probation.1 Grigsby was required to submit to random drug screens as a condition of his
probation.
On May 23, 2011, the State filed a notice of probation violation in all three cause
numbers, and each notice was amended on October 27, 2011. On November 1, 2011 the
court held a probation revocation hearing addressing all three cause numbers, and
Grigsby admitted that he violated the terms of his probation when he failed a drug screen.
On April 26, 2012, the court held a sentencing hearing and ordered that Grigsby serve the
balance of the suspended portions of his sentence under each cause number as executed
time in the Indiana Department of Correction (“DOC”). The court ordered that Grigsby
serve the sentences consecutively for an aggregate sentence of seven years and observed
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Specifically, Grigsby was sentenced to five years with three years executed and two years
suspended to probation under Cause No. 825 and three years with 180 days executed and two and one-
half years suspended to probation under both Cause No. 1142 and Cause No. 1143. The court ordered
that Grigsby serve the sentences consecutively.
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that he had accumulated credit time totaling 660 days which it applied to the sentence
under Cause No. 825.
The issue is whether the court abused its discretion in ordering that Grigsby serve
his previously suspended sentence. Grigsby argues that evidence was presented that he
has a history of psychological and substance abuse issues, that he recognizes his
mistakes, and that he is taking medications in order to function as “a much clearer, clear-
headed individual.” Appellant’s Brief at 4 (quoting Transcript Volume III at 26).
Grigsby argues that “[r]ather than ordering [him] to execute his suspended sentences, the
trial court had the option of continuing [him] on probation, with or without modifying or
enlarging the conditions, or it could have extended [his] probation for an additional year.”
Id. (citing Ind. Code § 35-38-2-3(g)). The State argues that Grigsby conceded that he
violated probation and that he received a favorable plea agreement but relapsed and was
arrested again.
At the time of Grigsby’s violation and the probation revocation hearing, Ind. Code
§ 35-38-2-3(g) set forth a trial court’s sentencing options if the trial court finds a
probation violation and provided:
If the court finds that the person has violated a condition at any time before
termination of the period, the court may impose one (1) or more of the
following sanctions:
(1) Continue the person on probation, with or without
modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more
than one (1) year beyond the original probationary
period.
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(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(g) (subsequently amended by Pub. L. No. 147-2012 (eff. July 1,
2012) (amending Ind. Code § 35-38-2-3 and setting forth the contents of subsection (g)
under subsection (h)). This provision permits judges to sentence offenders using any one
of or any combination of the enumerated options. Prewitt v. State, 878 N.E.2d 184, 187
(Ind. 2007).
The Indiana Supreme Court has held that a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard. Id. at 188.
The Court explained 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” and that “[i]f this discretion were not afforded to trial courts
and sentences were scrutinized too severely on appeal, trial judges might be less inclined
to order probation to future defendants.” Id. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and circumstances. Id. (citation
omitted). 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).
The record reveals that Grigsby admitted at the revocation hearing that he violated
his probation by failing a drug screen. At the sentencing hearing, the court observed in
sentencing him to serve the balance of his suspended sentence that he was “a regular
occurrence” before the court and that he had been arrested forty-six times since reaching
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adulthood. Transcript Volume III at 35. The court stated that Grigsby had “been in here
numerous times in the nine (9) years since I’ve been in here, and you’ve had good
attorneys, attorneys who’ve tried to help you . . . help yourself once you’ve been in
trouble.” Id. at 35-36. The court noted that Grigsby had received a “very favorable plea
agreement” which permitted him to serve his sentence on work release, but he could not
succeed. Id. at 36. The court also observed that in addition to his failed drug screen
Grigsby had received “a new B Felony dealing charge.” Id. The court noted that
“allowing [Grigsby] to go back into the community hasn’t worked in the last four (4)
years,” and that although it believed he had mental health and substance abuse issues,
“the criminal justice system can only do so much to help [him] to try to address those”
and if he is “unwilling to, then we really have . . . very little option.” Id. at 35-36.
Given the circumstances as set forth above and in the record, we cannot say that
the court abused its discretion in ordering Grigsby to serve his previously suspended
sentences totaling seven years. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App.
2008) (holding that the trial court did not abuse its discretion in reinstating the
probationer’s entire previously suspended sentence), trans. denied.
For the foregoing reasons, we affirm the trial court’s revocation of Grigsby’s
probation and order that he serve his previously suspended sentence in the DOC.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
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