Jeffrey Alan Grigsby v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Oct 31 2017, 8:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Alan Grigsby, October 31, 2017
Appellant-Defendant, Court of Appeals Case No.
11A01-1706-CR-1360
v. Appeal from the Clay Circuit
Court
State of Indiana, The Honorable Joseph D. Trout,
Appellee-Plaintiff Judge
Trial Court Cause No.
11C01-0905-FA-159
Crone, Judge.
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Case Summary
[1] Jeffrey Alan Grigsby appeals the revocation of his probation, claiming that the
trial court abused its discretion in ordering the execution of the remainder of his
suspended sentence. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] In May 2009, the State charged Grigsby with class A felony dealing in
methamphetamine, class C felony possession of methamphetamine, two counts
of class D felony possession of a controlled substance, and class A
misdemeanor resisting law enforcement. In December 2009, pursuant to a plea
agreement, Grigsby pled guilty to the lesser included offense of class B felony
dealing in methamphetamine; the State dismissed the remaining charges; and
the trial court imposed a twelve-year sentence, with ten years executed and two
years suspended to probation.
[3] Grigsby was released to probation in January 2016. In March 2016, the State
filed a petition to revoke probation, alleging that Grigsby violated his probation
by testing positive in three drug screens administered earlier that month,
admitting to using illegal drugs once that month, and failing to pay fees. In
April 2016, Grigsby admitted the alleged violations and reached a sentencing
agreement with the State. Pursuant to that agreement, the trial court ordered
Grigsby to serve twenty-two days in the Department of Correction, which
amounted to time already served in custody prior to the violation hearing. The
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court also ordered Grigsby to serve one year of his remaining probationary
period on electronic home detention.
[4] In May 2016, the State filed a second petition to revoke probation, alleging that
Grigsby violated his probation by possessing marijuana, methamphetamine, a
controlled substance, and paraphernalia, testing positive in a drug screen
administered in April, and failing to pay fees. In August 2016, Grigsby
admitted the alleged violations. The trial court ordered him to serve seventy
days in the Department of Correction, which amounted to time already served
in custody prior to the violation hearing.
[5] In December 2016, the State filed a third petition to revoke probation, alleging
that Grigsby violated his probation by admitting to using illegal drugs on three
occasions in August and September, failing to comply with his drug screen call-
in program, failing to report for drug screens on four occasions in October and
November, and failing to pay fees. In February 2017, the State filed an
amended petition, alleging that Grigsby also violated his probation by testing
positive in a drug screen administered earlier that month. In May 2017,
Grigsby admitted the violations alleged in the amended petition. He asked “for
a ninety (90) day sentence” and to be “returned to probation with the additional
term of enrolling [in] and completing” a residential drug treatment program.
Tr. Vol. 2 at 121. The trial court reviewed Grigsby’s prior probation violations
and remarked,
[W]e sta[r]ted out with this case and we had a third petition to
revoke probation and then -- then that was amended too because
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you continued to use methamphetamine even though you knew
that this was pending. I don’t think there’s any amount of drug
treatment that we can offer you that would be effective in regard
to your addiction. I think you have to be in a complete sober
living environment and I believe the Indiana Department of
Correction[] to be a sober living environment and I would allow
you, as soon as I learn how to put this in a sentencing order
about Purposeful Incarceration, if you can get the help you need,
I would be willing to consider a modification of your sentence
[…] and then make sure we can get you into some sort of
treatment program right away.
Id. at 123. The trial court revoked Grigsby’s probation, ordered him to serve
the remaining 638 days of his probationary period in the Department of
Correction, and recommended that he be incarcerated at a facility with certain
drug treatment programs. This appeal ensued.
Discussion and Decision
[6] Indiana Code Section 35-38-2-3(h) provides that if a court finds that a person
has violated a condition of probation at any time before termination of the
probationary period, the court may impose one 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.
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[7] “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). “Once a trial court has exercised its grace by ordering probation rather
than incarceration, the judge should have considerable leeway in deciding how
to proceed.” Id. “[A] trial court’s sentencing decisions for probation violations
are reviewable using the abuse of discretion standard. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances.” Id. (citation omitted).
[8] Grigsby contends that the trial court abused its discretion in ordering the
execution of his entire suspended sentence because he is purportedly ineligible
to participate in Department of Correction drug treatment programming, which
lasts longer than the time remaining on his sentence. He asserts that he called a
residential treatment center “two weeks before the probation revocation
hearing, and it had an opening which he hoped to fill.” Appellant’s Br. at 11.
Grigsby offers no documentation that supports this assertion or establishes that
he would be able to complete the center’s treatment program before the
expiration of his probationary period. Moreover, Grigsby admitted at the
revocation hearing that he had previously participated in a drug treatment
program through the Department of Correction, Tr. Vol. 2 at 119, which
obviously failed to help him overcome his addiction to illegal drugs. He offers
nothing but unconvincing assurances that he would fare any better in a
residential treatment program.
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[9] Grigsby also complains that the trial court abused its discretion in revoking his
probation because he suffers from several health problems, including a hernia
and cirrhosis of the liver, which requires dialysis and an expensive drug
regimen. The trial court voiced skepticism of Grigsby’s unsupported claim that
he would be unable to receive state financial assistance for his medication while
incarcerated, and it also noted that he had received only “a slap on the wrist”
after his first violation proceeding “because of [his] health problems[.]” Id. at
122, 121. Despite his health issues, Grigsby repeatedly violated his probation
by using illegal drugs, and he even used methamphetamine while his third
petition was pending. Up to that point, the trial court had demonstrated
remarkable patience with Grigsby’s substance abuse issues and had given him a
lifeline that he could have used to pull himself into a rehabilitated life. Instead
of using that lifeline to his advantage, Grigsby chose to hang himself with it and
cannot now be heard to complain. Under the circumstances, we cannot
conclude that the trial court abused its discretion in ordering the execution of
the remainder of Grigsby’s suspended sentence. Therefore, we affirm.
[10] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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