MEMORANDUM DECISION                                                        FILED
                                                                      May 30 2018, 6:50 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
Derick W. Steele                                        Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Kokomo, Indiana
                                                        Angela N. Sanchez
                                                        Supervising Deputy Attorney
                                                        General
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Craig C. Siebe
                                                        Certified Legal Intern
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James W. Geary, II,                                     May 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1711-CR-2724
        v.                                              Appeal from the Howard Circuit
                                                        Court
State of Indiana,                                       The Honorable Lynn Murray,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        34C01-1306-FB-89



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018            Page 1 of 7
[1]   James W. Geary, II (“Geary”) pleaded guilty to Class C felony child

      solicitation in the Howard Circuit Court in 2014. He received an eight-year

      sentence in the Indiana Department of Correction (“DOC”) with five years

      executed and three years suspended to supervised probation. In November

      2017, the trial court found that Geary violated his probation, and it ordered

      Geary to serve the remainder of his suspended sentence in the DOC. Geary

      now appeals arguing that the trial court abused its discretion when it revoked

      his suspended sentence.


[2]   We affirm.


                                             Facts and Procedure
[3]   In 2013, Geary was charged with Class B felony attempted sexual misconduct

      with a minor, Class C felony child solicitation, Class D felony sexual battery,

      Class A misdemeanor sex offender internet offense, and a habitual offender

      enhancement.1 On March 27, 2014, Geary pleaded guilty to Class C felony

      child solicitation pursuant to a plea agreement that called for eight years in the

      DOC with five years executed and three years suspended to supervised

      probation. The trial court accepted Geary’s plea and sentenced him in

      accordance with its terms.




      1
          In 2014, the State added an additional charge of Class C felony sexual misconduct with a minor.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018                   Page 2 of 7
[4]   Geary was released from the DOC in July 2016. As part of Geary’s supervised

      probation, he agreed to special probation conditions for adult sex offenders

      including: Condition 14, which states that Geary shall not engage in a sexual

      relationship with anyone who has a child under the age of sixteen unless given

      permission; Condition 17, which states that Geary shall not have any contact

      with anyone under the age of sixteen unless given court approval or after the

      successful completion of a court-approved sex offender treatment program; and

      Condition 25, which prohibits Geary from accessing certain web sites, chat

      rooms, or instant messaging programs frequented by children. See Appellant’s

      App. pp. 38–40.


[5]   On September 22, 2017, the State filed a petition to revoke Geary’s suspended

      sentence for violating the above three conditions. The State alleged that Geary

      violated Condition 14 by having a sexual relationship with L.B., who had a

      two-year-old child, M.B., at the time. And Geary had a sexual relationship with

      C.D., who had two children at the time, three-year-old S.D. and eight-month-

      old L.O. He allegedly violated Condition 17 by having contact with M.B. three

      to four times and contact with S.D. and L.O. over twenty times. Finally, the

      State alleged Geary violated Condition 25 by sending messages to L.B. via

      Facebook messenger.


[6]   On November 1, 2017, the trial court held a fact-finding and sentencing hearing

      on the State’s petition. During the hearing, Geary admitted that all three




      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018   Page 3 of 7
      violations were true. The court then ordered Geary to serve the 1,095-day2

      remainder of his suspended sentence to be executed in the DOC. Geary now

      appeals.


                                       Discussion and Decision
[7]   Geary contends that the trial court abused its discretion when it ordered him to

      serve the balance of his previously suspended sentence in the DOC. Geary does

      not deny that he violated the terms of his probation; to the contrary, he

      admitted to having done so. He claims only that the trial court abused its

      discretion in ordering the execution of the entirety of the suspended sentence

      because although “rules were broken . . . rehabilitation is not served by simply

      throwing [him] aside when the process is difficult.” Appellant’s Br. at 6. The

      State responds that the trial court did not abuse its discretion because Geary’s

      conditions of probation “do not exist solely to rehabilitate offenders” but

      “[t]hey also serve the critical function of protecting the community from

      offenders.” Appellee’s Br. at 8–9.


[8]   Upon a finding of a probation violation, a trial court may impose one or more

      of the following sanctions:


              (1)      Continue the person on probation, with or without
                       modifying or enlarging the conditions.




      2
        Because Geary had been in jail since September 27, 2017, he had 82 days of credit time, and thus his
      remaining executed sentence at the time of the hearing was 1,013 days.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018               Page 4 of 7
               (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.


       Ind. Code § 35-38-2-3(h).


[9]    A defendant is not entitled to serve a sentence in a probation program; rather,

       such placement is a matter of grace and a conditional liberty that is a favor, not

       a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We

       review the trial court’s sentencing decisions on probation violations for an

       abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse

       of discretion occurs where the decision is clearly against the logic and effect of

       the facts and circumstances before the court. Id. The trial court should be given

       considerable leeway in deciding how to proceed following the revocation of

       probation. Id. Consequently, so long as proper procedures have been followed,

       the trial court may order execution of a suspended sentence after revoking

       probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also

       I.C. § 35-38-2-3(h).


[10]   Here, Geary was on probation for Class C felony child solicitation, and thus he

       was subject to certain special probation conditions for adult sex offenders.

       Geary readily admits to violating three of those probation conditions. See Tr.

       pp. 16–18. And Geary’s counsel stated during the hearing, “yes, my client

       technically violated these rules.” Id. at 22. The trial court later told Geary, “you

       had to follow the rules . . . these conditions aren’t that hard to do, and I would

       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018   Page 5 of 7
       find that it’s appropriate both for the protection of the community, particularly

       for the children involved, that you would be ordered to serve the balance of

       your suspended sentence.” Id. at 24. We agree.


[11]   Geary’s only argument on appeal seems to be that the rehabilitative nature of

       probation is not served by ordering him to serve the remainder of his suspended

       sentence in the DOC. See Appellant’s Br. at 6–7. However, Geary actively

       chose to violate three conditions of his probation. See Beeler v. State, 959 N.E.2d

       828, 830 (Ind. Ct. App. 2011) (noting that violating a single condition is

       sufficient for a trial court to revoke probation), trans. denied. He knew what the

       conditions were, because he signed off on them. Moreover, he never attempted

       to notify the probation department that he was in relationships with these two

       women. Instead, Geary chose to disregard the conditions and the consequences

       of any potential violation. See Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018).


[12]   We also note that Geary has a prior conviction for child molestation in

       Georgia. And he violated the probation conditions in that case by having

       contact with two different minor children than those discussed in this appeal.

       Therefore, although we recognize that rehabilitation is a primary concern

       during sentencing, our supreme court has explained that “judges must have the

       ability to move with alacrity to protect public safety when adjudicated offenders

       violate the conditions of their sentences.” Stephens v. State, 818 N.E.2d 936, 941

       (Ind. 2004). And this is precisely what the trial court did here.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018   Page 6 of 7
                                                 Conclusion
[13]   Because Geary overtly failed to abide by three probation conditions he agreed

       to follow, and because of his prior criminal history, the trial court was well

       within its discretion to order him to serve the 1,095-day balance of his

       previously suspended sentence. Accordingly, we affirm.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018   Page 7 of 7
