Jhontay L. Whitesides v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Sep 27 2017, 10:41 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jhontay L. Whitesides, September 27, 2017
Appellant-Defendant, Court of Appeals Case No.
84A05-1703-CR-516
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1307-FD-2084
84D01-1508-F3-2017
Mathias, Judge.
[1] Jhontay Whitesides (“Whitesides”) admitted to several probation violations in
Vigo Superior Court. As a result, the trial court revoked his direct placement
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and probation. In this appeal, Whitesides claims that the trial court abused its
discretion by ignoring mitigation evidence and by ordering him to serve seven
years of his previously suspended sentence in the Department of Correction.
[2] We affirm.
Facts and Procedural History
[3] On August 26, 2015, Whitesides was charged with Level 3 felony armed
robbery and Level 3 felony criminal confinement. Whitesides pleaded guilty,
and on September 27, 2016, he was sentenced to ten years, with six years
executed in Community Corrections on work release and four years suspended
to probation.1
[4] Between October 2016 and January 2017, Whitesides violated the conditions of
his direct placement and probation several times. He committed an escape
violation because his whereabouts were unknown for over two hours. He was
found in possession of or using tobacco on three occasions. He tested positive
for alcohol in one incident, and in another, he was fired from his job for
consuming alcohol to the point where he was hospitalized. He was cited for a
punctuality and attendance violation as well as for refusing to follow an order.
Additionally, he was arrested and removed from work release for possessing a
1
In a March 30, 2017, unpublished decision, we held that the trial court did not abuse its discretion when
imposing Whitesides’s sentence. Whitesides v. State, No. 84A01-1610-CR-2424, 2017 WL 1179627, at *3 (Ind.
Ct. App. Mar. 30, 2017).
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synthetic drug. Due to these infractions, the State filed a Petition to Revoke
Direct Placement and/or Probation (“the Petition”) on January 17, 2017.
[5] On February 7, 2017, a hearing was held on the Petition. During the hearing,
Whitesides admitted to all of the facts and violations included in the Petition.
After hearing evidence from both sides, the trial court revoked Whitesides’s
direct placement and probation. The court explained, “your history is littered
with probation violations. I mean you just, everything we’ve try [sic] you don’t
do. You haven’t given me any options to work with.” Tr. p. 18. As a result,
Whitesides was ordered to serve seven years of his original sentence in the
Indiana Department of Correction2 with three years suspended to formal
probation. Whitesides now appeals.
Discussion and Decision
[6] Whitesides presents two issues for our review, which we restate as the single
issue of whether the trial court abused its discretion when it ordered him to
serve seven years in the Department of Correction for his violations of work
release and probation.
[7] We review a trial court’s decision to revoke probation and a trial court’s
sentencing decision in a probation revocation proceeding for an abuse of
2
The court ordered purposeful incarceration and recommended that Whitesides be placed in the PLUS
(Purposeful Living Units Served) program. Additionally, the trial court informed Whitesides that he could
petition the court for modification after completing the PLUS program and that it would “consider you [sic]
place in either Community Corrections or back to probation depending on what kind of record you give me
on the motion to modify.” Tr. p. 18.
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discretion. Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). An abuse
of discretion occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it. Berry v. State, 904 N.E.2d
365, 366 (Ind. Ct. App. 2009).
[8] To revoke probation, the trial court must make two determinations under
Indiana Code section 35-38-2-3. First, the court must find that a violation has
occurred by a preponderance of the evidence. I.C. § 35-38-2-3(f). Second, if this
threshold is met, the trial court has three options: (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 year beyond the original
probationary period, or (3) order execution of all or part of the sentence that
was suspended at the time of initial sentencing. I.C. § 35-38-2-3(h).
[9] Here, the court did not need to find that the allegations were proven by a
preponderance of the evidence, because Whitesides admitted to all of them at
his hearing.3 Whitesides’s primary argument is that “the trial court abused it’s
[sic] discretion in sentencing him to incarceration, rather than allowing a
sentence which would [e]nsure treatment.”4 Appellant’s Br. at 10. We disagree.
3
The State indicated eleven violations between October 25, 2016, and January 17, 2017. Appellant’s App.
pp. 30–31.
4
Whitesides also argues that the trial court abused its discretion by failing to acknowledge “the mitigating
factor of Mr. Whitesides’[s] addiction.” Appellant’s Br. at 9. We first note that the trial court did
acknowledge his addiction when it recommended he be placed in the PLUS Program while incarcerated.
However, even if it had not, our court has consistently held “that trial courts are not required to balance
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[10] We first note, that after Whitesides admitted to various probation violations, it
was well within the trial court’s discretion to revoke his direct placement and
probation and order him to execute a portion of his suspended sentence. See
I.C. § 35-38-2-3(h)(3); Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007),
(holding a single violation is sufficient to revoke probation), trans. denied.
Further, despite Whitesides’s contrary assertions, he has been afforded the
opportunity for treatment over the past several years by the court. In 2012,
Whitesides was ordered to complete the A&D program. In 2016, MATRIX and
other substance abuse programming was ordered as part of the probation
underlying this case. And here, the trial court ordered purposeful incarceration
in the PLUS program, and made it clear to Whitesides that it would consider
modifying his sentence after completion of the program. Tr. p. 18.
[11] Additionally, at the revocation hearing, Whitesides’s case manager was asked,
“is there anything that you could do to take him back or any program he could
be placed in through Community Corrections to get the help that he needs with
substance abuse problems?” Tr. p. 9. He responded, “Our recommendation is
that he’s not appropriate for either of our programs.” Id. The court then
explained to Whitesides, “I mean you just, everything we’ve try [sic] you don’t
do. You haven’t give me any options to work with.” Id. at 18; see Jones, 838
N.E.2d at 1148 (explaining that this court has stated on numerous occasions
aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding.”
Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied (citations omitted).
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that a defendant is not entitled to serve a sentence in a probation program, but
rather a probationary placement is a “matter of grace,” and “not a right”)
(citations omitted).
[12] Four probation violations had been filed against Whitesides prior to the current
offense, and each time the trial court permitted him to continue on probation
with modified conditions. After this fifth filing, the trial court’s order that
Whitesides serve seven years of his original sentence in the Department of
Correction is not an abuse of discretion. See, e.g., Sandlin v. State, 823 N.E.2d
1197, 1198 (Ind. 2005) (affirming the trial court’s decision to order the
defendant to serve his entire four-year suspended sentence for violating
probation); Cox v. State, 850 N.E.2d 485, 491 (Ind. Ct. App. 2006) (holding that
the trial court did not abuse its discretion by ordering the defendant to serve his
entire suspended sentence after finding two violations); Sanders v. State, 825
N.E.2d 952, 958 (Ind. Ct. App. 2005) (ordering defendant to serve the entirety
of her suspended sentence where she admitted to probation violations was not
an abuse of discretion), trans. denied.
Conclusion
[13] For the foregoing reasons, we affirm the trial court’s revocation of Whitesides’s
probation and the sanctions it imposed.
[14] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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