MEMORANDUM DECISION                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 26 2016, 8:33 am

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
Leanna K. Weissmann                                      Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jenneil Jackson,                                         April 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1509-CR-1386
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1208-FB-43



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016        Page 1 of 5
                                           Statement of the Case
[1]   Jenneil Jackson (“Jackson”) appeals the trial court’s order that she serve 730

      days of her previously suspended sentence for Class B felony conspiracy to

      commit burglary after she violated her probation for that conviction.1 On

      appeal, Jackson argues that the trial court abused its discretion in ordering her

      to serve that amount of her suspended sentence because it was excessive in light

      of her desire to reform. In light of Jackson’s criminal history and the fact that

      this was her second violation of her probation for her conspiracy to commit

      burglary conviction, we conclude that the trial court did not abuse its discretion.


[2]   We affirm.


                                                           Issue
                 Whether the trial court abused its discretion when it ordered
                 Jackson to serve 730 days of her previously suspended sentence in
                 the Indiana Department of Correction (“DOC”).

                                                           Facts
[3]   On August 28, 2013, Jackson pled guilty to Class B felony conspiracy to

      commit burglary. The trial court sentenced her to 2,920 days, with 1,460 of

      those days suspended to probation. One of the conditions of her probation was

      that she “[n]ot consume any alcohol, illegal drugs or the synthetic form of any

      illegal drug, or controlled substance, without a valid prescription and submit to




      1
          IND. CODE §§ 35-41-5-2 and 35-43-2-1(1)(B)(i).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016   Page 2 of 5
      testing as required by Probation, Community Corrections, or a Law

      Enforcement Officer.” (App. 26).


[4]   On December 1, 2014, Jackson’s probation officer filed a petition to revoke

      Jackson’s probation, alleging that on November 24, 2014, Jackson had violated

      the terms of her probation by testing positive for marijuana. On May 7, 2015,

      Jackson pled guilty to the violation, and the trial court ordered her to serve

      forty-four (44) days of her suspended sentence.


[5]   Subsequently, on August 10, 2015, Jackson’s probation officer filed a second

      petition to revoke her probation. In the petition, the officer alleged that on or

      about July 30, 2015, Jackson had tested positive for methamphetamine and

      amphetamine. On August 20, 2015, at her initial hearing, Jackson admitted to

      violation. As a result, the trial court revoked her probation a second time and

      ordered her to serve 730 days of her previously suspended sentence. As a basis

      for its order, the trial court cited Jackson’s criminal history and the fact that it

      was her second probation violation in this cause. Jackson now appeals.


                                                  Decision
[6]   On appeal, Jackson argues that the trial court abused its discretion in ordering

      her to serve 730 days of her previously suspended sentence in the DOC. She

      acknowledges that she violated her probation twice, but she argues that

      “[r]ather than using her mistake as an excuse to binge and fall completely off

      the wagon, [she] used her relapse as an impetus to try even harder to maintain

      sobriety.” (Jackson’s Br. 8). Specifically, she “went to drug classes and is

      Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016   Page 3 of 5
      working hard to stay sober.” (Jackson’s Br. 8). In light of this desire to change,

      Jackson argues that the trial court abused its discretion in ordering her to serve

      half of her suspended sentence.


[7]   First, we note that “‘[p]robation is a matter of grace and a conditional liberty

      [that] is a favor, not a right.’” Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.

      App. 2015) (quoting Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012)).

      INDIANA CODE § 35-38-2-3(h) sets forth a trial court’s options once the trial

      court has found a probation violation. It provides:

              If the court finds that the person has violated a condition at any
              time before termination of the period, and the petition to revoke
              is filed within the probationary period, the court may impose one
              (1) 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.

      I.C. § 35-38-2-3(h). Our supreme court has held that a trial court’s sanction

      decisions for probation violations are reviewable using the abuse of discretion

      standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). This is because

      “[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. We will find that a trial court has abused its discretion when its


      Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016   Page 4 of 5
      decision is clearly against the logic and effect of the facts and circumstances

      before it. Id.


[8]   Even though Jackson asserts she has been attending drug classes and attempting

      to stay sober, we cannot conclude that the trial court abused its discretion when

      it ordered her to serve 730 days of her previously suspended sentence. As the

      trial court noted, this was Jackson’s second probation violation under this

      cause, and the trial court had already granted her leniency when it ordered her

      to serve only forty-four days of her suspended sentence and allowed her to then

      continue on probation after her first probation violation. In addition, Jackson

      has a notable criminal history that includes several drug and alcohol related

      offenses. These offenses included, among others, three convictions of Class C

      misdemeanor illegal consumption of an alcoholic beverage; one conviction of

      Class B misdemeanor disorderly conduct; and one conviction for Class B

      misdemeanor public intoxication that endangers the person’s life. In addition,

      Jackson was convicted of Class A misdemeanor conversion in 2007 and

      violated her probation four times in that cause. In light of the leniency the trial

      court afforded Jackson in the past and her criminal history, we conclude that

      the trial court did not abuse its discretion when it ordered her to serve 730 days

      of her suspended sentence.


[9]   Affirmed.


      Kirsch, J., and Riley, J., concur.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016   Page 5 of 5
