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


Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017      Page 1 of 7
[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.



      Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 2 of 7
[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.




      Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 3 of 7
[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

       Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 4 of 7
       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).


       Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 5 of 7
[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.




       Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 6 of 7
[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.




       Court of Appeals of Indiana | Memorandum Decision 69A01-1702-CR-333 | July 3, 2017   Page 7 of 7
