Anthony Levell Gregory, II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 24 2015, 10:56 am
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 APPELLEES
James D. Crum Gregory F. Zoeller
Coots, Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Levell Gregory, II, July 24, 2015
Appellant-Defendant, Court of Appeals Case No.
29A02-1502-CR-114
v. Appeal from the Hamilton Circuit
Court
State of Indiana,
The Honorable Paul A. Felix, Judge
Appellee-Plaintiff.
Cause No. 29C01-0810-FB-97
Bailey, Judge.
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Case Summary
[1] Anthony Levell Gregory, II (“Gregory”) was convicted of two counts of
Burglary, as Class B felonies.1 After serving the executed portion of his
sentence, Gregory was placed on probation. His probation was subsequently
revoked. Gregory now appeals the trial court’s order revoking his probation
and ordering him to serve the remainder of his previously suspended sentence
as executed time, with one year to be served in the Indiana Department of
Correction and two years to be served with Hamilton County Community
Corrections.
[2] We affirm.
Issue
[3] Gregory presents a single issue for our review, which we restate as whether a
probation revocation sanction may be reviewed under Appellate Rule 7(B).
Facts and Procedural History
[4] On October 29, 2008, Gregory was arrested and charged with two counts of
Burglary, as Class B felonies; Theft, as a Class D felony; 2 and Attempted Theft,
1
Ind. Code § 35-43-2-1. In light of the wide-reaching amendments our General Assembly has made to
Indiana’s criminal statutes, we apply the substantive provisions of our laws effective at the time of Gregory’s
proceedings.
2
I.C. § 35-43-4-2.
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as a Class D felony.3 On April 2, 2009, based upon a plea agreement, Gregory
entered a plea of guilty as to the two counts of Burglary. The State dismissed
the other two charges.
[5] On July 22, 2009, the trial court accepted the plea agreement and sentenced
Gregory to ten years imprisonment for each of the two counts of Burglary, with
the sentences to be served concurrent with one another. The trial court ordered
that Gregory serve six years of his term as executed time, with four years of his
prison term in the Department of Correction, one and one-half years in the
Hamilton County Community Corrections’ Work Release Program, and six
months on Home Detention. Four years of Gregory’s term were suspended to
probation, with two years of that time to be served as supervised probation.
[6] On July 6, 2012, Gregory violated the terms of his Community Corrections
placement. On November 1, 2012, the trial court ordered Gregory to serve the
remainder of the executed portion of his sentence in the Indiana Department of
Correction.
[7] On October 24, 2013, Gregory was released by the Indiana Department of
Correction and was placed under the supervision of the Hamilton County
Probation Department.
3
I.C. §§ 35-41-5-1 & 35-43-4-2.
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[8] On October 28, 2014, the Probation Department filed an information alleging
that Gregory had violated multiple terms of his probation. Specifically, the
information alleged that Gregory had on September 9, 2014 tested positive for
use of marijuana and alprazolam (a scheduled drug); had been dishonest with a
probation officer with respect to his use of an illegal drug; and had, on October
7, 2014 in Fulton County, committed Driving While Suspended, as a Class A
misdemeanor.
[9] After several continuances, on February 19, 2015, a fact-finding hearing on the
information was conducted. During the hearing, Gregory admitted to having
violated the terms of probation. The trial court accordingly found Gregory to
have violated probation, and ordered Gregory to serve the three remaining
years of his sentence as executed time, with one year to be served in the Indiana
Department of Correction and two years to be spent under the oversight of
Hamilton County Community Corrections.
[10] This appeal ensued.
Discussion and Decision
[11] On appeal, Gregory argues that the trial court abused its discretion when it
revoked his probation and ordered him to serve the remainder of his sentence as
executed time in the Department of Correction and community corrections.
Specifically, Gregory argues that while revocation was within the trial court’s
statutory discretion, we should review the revocation of probation for
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inappropriateness, as if it were an original sentence under the Indiana
Constitution and our Appellate Rules.
[12] The Indiana Supreme Court has stated:
Probation is a matter of grace left to trial court discretion, not a right to
which a criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952(Ind. Ct. App. 2005). The trial court determines the conditions of
probation and may revoke probation if the conditions are violated.
Ind.Code Ann. § 35–38–2–3 (West 2007); Goonen v. State, 705 N.E.2d
209 (Ind. Ct. App. 1999). 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. If 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. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse of
discretion standard. See Sanders, 825 N.E.2d at 956. An abuse of
discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Guillen v. State, 829 N.E.2d 142(Ind. Ct. App. 2005).
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). When faced with a probation
violation, the trial court may, in its discretion, continue the probationary
period, extend the probationary period for up to one year, or order that some or
all of the probationer’s suspended sentence be served as executed time. I.C. §
35-38-2-3(h).
[13] In Prewitt, and again in Jones v. State, 885 N.E.2d 1286 (Ind. 2008), the Indiana
Supreme Court held that application of the inappropriateness standard under
Appellate Rule 7(B) was “not the correct standard to apply when reviewing a
sentence imposed for a probation violation.” Prewitt, 878 N.E.2d at 188; Jones,
885 N.E.2d at 1290. We are not free to determine otherwise today. We
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accordingly decline Gregory’s request that we reexamine the Indiana Supreme
Court’s decision on this matter and apply the inappropriateness standard to his
probation revocation sanction.
[14] Further, we find no abuse of discretion on the trial court’s part in its decision to
revoke Gregory’s probation in its entirety. Gregory admitted to having
committed all the alleged violations of the terms of his probation, including
consumption of marijuana and driving with a suspended license. Prior to being
on probation, in 2012 Gregory had violated the provisions of his Community
Corrections placement. Despite the Hamilton County Probation Department’s
recommendation of ninety days imprisonment with a return to probation,
Gregory admitted his probation violation and acknowledged that the trial court
would exercise its discretion in determining a sanction. Thus, we cannot
conclude that the trial court’s sanction was outside its discretion.
[15] Affirmed.
Riley, J., and Barnes, J., concur.
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