Gregory D. Swagger v. State of Indiana ( 2013 )

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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Assistant to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
Jun 28 2013, 10:55 am
IN THE
COURT OF APPEALS OF INDIANA
GREGORY D. SWAGGER, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1212-CR-1018
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Frederick A. Schurger, Special Judge
Cause No. 90C01-0410-FA-6
June 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Gregory D. Swagger was serving four years of probation as part of his sentence for a
class B felony child molesting conviction. The State alleged that he violated his probation,
and he admitted to the allegations contained in the revocation petition. The trial court
revoked his probation and ordered that he serve the rest of his sentence in the Department of
Correction (“DOC”). He now appeals, claiming that the trial court abused its discretion in
doing so. Finding no abuse of discretion, we affirm.
Facts and Procedural History
In August 2005, Swagger pled guilty to class B felony child molesting. In February
2006, the trial court sentenced him to ten years, with six executed and four suspended to
probation. His probation terms required that he attend, actively participate in, and
successfully complete a court-approved sex offender treatment program, that he maintain
steady progress in treatment, and that he not be unsuccessfully terminated from treatment or
be noncompliant. Appellant’s App. at 49-53.
Following his release from prison in May 2009, Swagger was transferred between two
county probation departments but was subject to the original conditions of his probation. In
July 2012, the State filed a verified petition for revocation of Swagger’s suspended sentence
and probation. The petition incorporated an attached letter from Swagger’s clinical social
worker, which stated in part,
Mr. Swagger was told on June 25, 2012 by letter and on June 28, 2012 in
person that he would be immediately terminated from the program unless he
left a copy of the Doctor’s note regarding his missed group session at the front
desk of Family Services within 1 week. He also was informed that he needed
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to pay off his polygraph balance by August 1st, 2012 as it is 20 months
overdue!
Mr. Swagger failed to comply with either of these stipulations. He has
consistently demonstrated he is not willing to participate in treatment and
follow the rules of the program and so is TERMINATED from the Sex
Offender treatment program effective immediately.
Id. at 61.
In September 2012, Swagger admitted to the allegations contained in the petition.
Following a November 2012 hearing, the trial court revoked his probation and ordered the
execution of his suspended sentence. Swagger now appeals. Additional facts will be
provided as necessary.
Discussion and Decision
Swagger challenges the trial court’s execution of his suspended sentence. Probation is
a matter of grace left to the trial court’s sound discretion, not a right to which a criminal
defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court
determines the conditions of probation and may revoke probation if the probationer violates
those conditions. Id. We review a trial court’s sentencing decisions for probation violations
using an 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. In determining whether a trial court has abused its discretion, we do not reweigh
evidence. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009). Instead, we consider
conflicting evidence in the light most favorable to the trial court’s ruling. Id.Here, Swagger admitted to the allegations contained in the revocation petition and
does not challenge this aspect of the trial court’s revocation order. Rather, he claims that the
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trial court abused its discretion in imposing the sanction for his probation violation. Indiana
Code Section 35-38-2-3(h) states,
If the court finds that the person has violated a condition at any time
before termination of the period, and the petition to revoke is filed within the
probationary 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.
(3) Order execution of all or part of the sentence that was suspended at
the time of initial sentencing.
(Emphasis added.)
The statute clearly gives the trial court three options with respect to sanctioning a
probationer who has violated his probation terms. One of those options is to do just what the
trial court did here: order execution of all four years of Swagger’s sentence that was
previously suspended. Notwithstanding, Swagger suggests that the trial court’s sanction
amounted to an abuse of discretion because his infraction was “a single violation which did
not involve a new criminal offense” and the petition to revoke was filed “nearly 36 months
into his 48-month period of probation[.]” Appellant’s Br. at 6. In this vein, we note first that
proof of a single violation of probation terms is sufficient to support revocation, Bussberg v.
State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied, and that the violation need not
involve a criminal act. See, e.g., Stephens v. State, 818 N.E.2d 936, 938 (Ind. 2004) (where
violation consisted of missing two psychosexual counseling sessions).
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We also note that the statute contains no qualifying language concerning the
circumstances under which a trial court may order execution of the full term versus a partial
term. Moreover, the record indicates that the June 14, 2012 counseling session cited in the
revocation petition was the twelfth such session that Swagger had missed without excuse.
His social worker testified that in addition to having numerous unexcused absences, Swagger
had been disruptive in group treatment sessions and had been terminated from counseling for
failure to make progress and for being twenty months overdue in paying for his polygraphs.
Tr. at 35-38. Simply put, the record shows that Swagger’s violations were not singular but
many and that his eleven previous unexcused absences from counseling occurred before June
14, 2012, thereby undercutting his argument that he had successfully completed three-
quarters of his probation without any violations. We decline his invitation to reweigh
evidence.
The trial court was statutorily authorized to order the execution of all of Swagger’s
four-year suspended term. Thus, we find no abuse of discretion here. Accordingly, we
affirm.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
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