Brandon Shryock v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 04 2017, 6:51 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dylan A. Vigh Curtis T. Hill, Jr.
Law Offices of Dylan A. Vigh, LLC Attorney General of Indiana
Indianapolis, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Shryock, December 4, 2017
Appellant-Defendant, Court of Appeals Case No.
48A04-1706-CR-1177
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
48C04-1503-F5-459
48C04-1507-F5-1056
Bailey, Judge.
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Case Summary
[1] Brandon Shryock (“Shryock”) pled guilty to Criminal Stalking, as a Level 5
felony,1 Invasion of Privacy, as a Class A misdemeanor,2 Criminal Mischief, as
a Class A misdemeanor,3 and two counts of Domestic Battery, as Class A
misdemeanors.4 His aggregate sentence included a term of incarceration and a
term of home detention; also, a portion of his sentence was suspended to
supervised probation. Shryock was ordered not to have contact, direct or
indirect, with his victim. He subsequently violated the no-contact order and
admitted his violation. As a probation violation sanction, Shryock’s home
detention placement was revoked, a portion of his previously-suspended
sentence was reinstated, and he was ordered to serve 1,460 days of
imprisonment. On appeal, he presents the sole issue of whether the trial court
abused its discretion in imposing the sanction. We affirm.
Facts and Procedural History
[2] M.J. is the mother of Shryock’s three children. On January 25, 2016, Shryock
pled guilty to six charges, in two separate cause numbers, stemming from his
criminal conduct against M.J. In Case 1056, Shryock received an aggregate
1
Ind. Code § 35-45-10-5.
2
I.C. § 35-46-1-15.1
3
I.C. § 35-43-1-2.
4
I.C. § 35-42-2-1.3.
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sentence of ten years, with three years to be executed in the Department of
Correction (“the DOC”), to be followed by six months in home detention. The
remainder of the sentence was suspended, with six years of supervised
probation. In Case 459, Shryock was sentenced to thirty months in the DOC,
all suspended to direct placement in the Madison County Community
Corrections home detention program. The sentences were to be served
consecutively. In each case, the trial court issued a no-contact order prohibiting
Shryock from having direct or indirect contact with M.J.
[3] While he was incarcerated in the DOC, Shryock drafted and mailed a letter
addressed to his eldest child. The letter included communication intended to
reach M.J. Shryock requested that the child ask his mother to allow Shryock to
see his children. Shryock also offered predictions that he and M.J. would be in
court all the time, he would get joint custody of their children, M.J. would
hopefully go to jail or prison, and Shryock would not be bringing the children to
see her. On March 14, 2017, Shryock was charged with Invasion of Privacy.
[4] On April 4, 2017, the State filed a petition in Case 1056 to revoke Shryock’s
home detention placement and probation. On April 25, 2017, the State filed a
revocation petition in Case 459.
[5] On May 8, 2017, Shryock appeared at a hearing and submitted a plea
agreement to resolve the new charge and the pending revocation petitions.
Shryock pled guilty to the new charge of Invasion of Privacy and his executed
prison time was capped at one year. He admitted the alleged violations with
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respect to Case 459 and Case 1056, with the sanction to be imposed left open
for argument.
[6] Shryock received a sentence for his new offense of thirty months, with eighteen
months suspended to probation. In Case 459, Shryock’s home detention
placement was revoked and he was ordered to serve the remainder of his 456
days in the DOC. In Case 1056, Shryock’s community corrections placement
was revoked and his suspended sentence was partially revoked. He was
ordered to serve 1,004 previously-suspended days in the DOC with 1,551 days
remaining after completion of the executed sentence to be served on probation.
As such, Shryock was ordered to serve four years (1,460 days) in the DOC as a
sanction for his violations in Case 459 and 1056. He now appeals.
Discussion and Decision
[7] If a trial court determines that a probationer has violated the terms of his
probation, the trial court may continue the defendant on probation, change the
terms of the probation, or order all or part of the previously suspended sentence
to be executed. I.C. § 35-38-2-3. Similarly, if a defendant placed on
community corrections violates the terms of his placement, the trial court may
change the terms of the placement, continue the placement, reassign the person,
or commit the person to the DOC for the remainder of the sentence. I.C. § 35-
38-2.6-5. For purposes of appellate review, a petition to revoke placement in
community corrections is treated the same as a petition to revoke probation.
Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016).
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[8] Probation revocation is a two-step process. First, the court must determine
whether the terms of probation have been violated; second, the court must
determine appropriate sanctions for the violation. Heaton v. State, 984 N.E.2d
614, 616 (Ind. 2013). The Indiana Supreme Court has set forth the standard
under which we review decisions revoking probation and imposing sanctions
for the violation of probation terms:
“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). It is within the discretion of the
trial court to determine probation conditions and to revoke
probation if the conditions are violated. Id. In appeals from trial
court probation violation determinations and sanctions, we
review for abuse of discretion. Id. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the
facts and circumstances, id., or when the trial court misinterprets
the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
(“An abuse of discretion may also be found when the trial court
misinterprets the law or disregards factors listed in the controlling
statute.”)).
Id.
[9] Shryock does not contest the determination that he violated the terms of his
probation and community corrections placement. He argues only that the
sanction amounts to an abuse of the trial court’s discretion. More specifically,
Shryock contends that the sanction was unduly harsh because the letter content
was relatively benign, he did not draft it with malicious intent or blatant
disregard of the law, and the State did not present evidence of M.J.’s reaction.
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[10] A review of the record discloses that Shryock has a substantial history of crimes
against M.J. Despite leniency in the past, he has been undeterred in his
criminal conduct involving the same victim. In the latest offense of Invasion of
Privacy, he attempted to use his minor child as an instrumentality for his
purposes. Shryock’s arguments as to benign intent and minimal consequences
simply present a request for reweighing the evidence. We conclude that the
order that Shryock serve a portion of his previously suspended sentence in the
DOC is not clearly against the logic and effect of the facts and circumstances
before the trial court.
Conclusion
[11] Shryock has not established that the trial court abused its discretion in its order
for sanctions.
[12] Affirmed.
Kirsch, J., and May, J., concur.
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