James Maloney 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 Jul 03 2017, 8:54 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
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Maloney, July 3, 2017
Appellant-Defendant, Court of Appeals Case No.
69A01-1702-CR-333
v. Appeal from the Ripley Circuit
Court and Superior Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1501-F5-2, 69D01-1510-F6-
136, 69D01-1601-F6-101
Altice, Judge.
Case Summary
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[1] James Maloney appeals following the revocation of his probation under three
cause numbers. He argues that the trial court abused its discretion in ordering
him to serve the bulk of his previously suspended sentences in the Department
of Correction (DOC).
[2] We affirm.
Facts & Procedural History
[3] In January 2015, the State charged Maloney in Cause No. 69C01-1501-F5-2
(Cause F5-2) with Level 5 felony intimidation with a deadly weapon and Class
A misdemeanor domestic battery. These charges arose from an incident with
his wife, E.F. While out on bond in October 2015 and when a no-contact order
was in place, Maloney was arrested for battering E.F. again. This new charge
of Class A misdemeanor domestic battery and an invasion of privacy count, as
a Level 6 felony, were filed under Cause No. 69D01-1510-F6-136 (Cause F6-
136). Maloney remained incarcerated following this second arrest.
[4] While being held in jail, Maloney was charged on January 7, 2016, with one
count of conspiracy to commit invasion of privacy, one count of conspiracy to
commit obstruction of justice, three counts of attempted obstruction of justice,
and three counts of invasion of privacy, all as Level 6 felonies under Cause No.
69D01-1601-F6-10 (Cause F6-10). These all stemmed from Maloney’s
numerous attempts to contact E.F. and dissuade her from testifying against him
in Causes F5-2 and F6-136.
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[5] On January 11, 2016, pursuant to a plea agreement, Maloney pled guilty as
charged under Cause F6-136 and guilty to one count of conspiracy to commit
obstruction of justice and one count of invasion of privacy under Cause F6-10.
That same day, the trial court imposed an aggregate sentence of 1275 days with
all but time served suspended in Cause F6-136 and 1460 days, all suspended, in
Cause F6-10.
[6] Maloney also pled guilty as charged under Cause F5-2. Following a sentencing
hearing on March 18, 2016, the trial court sentenced him to consecutive terms
of imprisonment of six years for Level 5 felony intimidation and one year for
Class A misdemeanor domestic battery. The aggregate seven-year sentence was
ordered suspended to probation. Thus, Maloney faced a total of over fourteen
years on probation under the three causes.
[7] After apparently being released from jail in another county, Maloney began
serving his probation in the underlying causes on or about May 10, 2016. Less
than four months later, he violated probation by battering E.F. again on
September 2, 2016. E.F.’s injuries from the violent attack included a bloody
nose, a knot on her wrist, bruising on her head, a missing clump of hair, and
bites to her arms, legs, and breast. After beating E.F., Maloney forced her to
shower to wash the blood from her body. E.F. was eventually able to flee the
home and seek assistance from a neighbor. She was taken by ambulance to the
hospital and treated for her injuries.
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[8] On September 14, 2016, Maloney’s probation officer learned of the filing of a
criminal information for Level 5 felony battery under Cause No. 69C01-1609-
F5-31 (Cause F5-31). He spoke with Maloney over the phone and requested
that Maloney report to his office at 8:30 a.m. the following day. After Maloney
did not show up for the probation appointment, he was found at his home and
arrested that same day. Upon his arrest, Maloney was served with a protective
order that, among other things, prohibited him from directly or indirectly
contacting E.F.
[9] On September 16, 2016, notices of probation violation were filed in Causes F5-
2, F6-136, and F6-10, alleging that Maloney had committed a new criminal
offense and had failed to report to his probation officer as directed. The trial
court held a fact-finding hearing on the alleged probation violations on
December 20, 2016, at which the court found the allegations to be true. At the
dispositional hearing on January 10, 2017, evidence was admitted that during
his current incarceration, Maloney continually attempted to contact E.F. in
violation of the protective order. He made approximately 200 calls to various
numbers connected with E.F., many of which were made in an effort to keep
her from testifying against him and lift the protective order. He made the last
call within a few days of the dispositional hearing.
[10] At a pronouncement of sentence hearing on January 17, 2017, the trial court
thoroughly addressed the facts and circumstances of the underlying crimes,
Maloney’s significant criminal history (“at least 20 arrests, 12 convictions and 8
prior probation violations”), his high risk to reoffend, the threat he posed to
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E.F. if released on probation, and his actions during his current incarceration.
Transcript at 164. The court then revoked the majority of Maloney’s probation
as follows:
The Court revokes 6 years of Defendant’s suspended sentence in
Cause [F5-2]; 910 days in Count I and 185 days in Count II in
Cause [F6-136] and 730 days in Count II and 545 days in Count
VI in Cause [F6-10]; all to run consecutive to each other for a
total of 12 years.
Id. at 166. Maloney appeals, arguing that the trial court abused its discretion by
revoking so much of his previously suspended sentence.
Discussion & Decision
[11] We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the
logic and effect of the facts and circumstances before the court. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[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.” Id. “If the court finds the
defendant has violated a condition of his probation at any time before the
termination of the probationary period, and the petition to revoke is filed within
the probationary period, then the court may order execution of the sentence
that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h).
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[12] Maloney argues that the trial court abused its discretion under the
circumstances. Specifically, Maloney asserts that he has worked to combat his
drug addiction and now understands the toxic relationship he has with his wife
and the need to distance himself from her. Maloney notes that at the
dispositional hearing he assured the trial court that it did not need to send him
to prison to protect E.F.
[13] Maloney’s actions, however, speak much louder than his self-serving
declarations of reformation. He violently attacked his wife in January 2015 and
then while out on bond, he violated the no-contact order and battered her again
in October 2015. While he was in jail following these two separate batteries,
Maloney directly or indirectly contacted E.F. on numerous occasions in
violation of the no-contact order.
[14] After he was sentenced in the underlying causes and released to probation on
May 10, 2016, he continued to have contact with E.F. On September 2, 2016,
he beat her again, resulting in new criminal charges, a probation violation, and
the issuance of a protective order. Undeterred during his incarceration,
Maloney engaged in a continued campaign to directly or indirectly contact E.F.
and encourage her to recant. Maloney made hundreds of improper calls, and
the calls continued even after the fact-finding hearing on December 20, 2015.
In fact, he attempted to contact E.F. a matter of days before the dispositional
hearing held on January 10, 2017.
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[15] We agree with the trial court. Maloney has established – by his own actions –
that he is not a good candidate for probation and that his release on probation
would place E.F. in danger. The trial court did not abuse its discretion.
[16] Judgment affirmed.
[17] Kirsch, J. and Mathias, J., concur.
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