MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              Jul 14 2015, 8:19 am
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 APPELLEE
Kenneth I. Sondik                                         Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Daniel R. Jones,                                          July 14, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A05-1502-CR-83
        v.                                                Appeal from the Hamilton Superior
                                                          Court
State of Indiana,                                         The Honorable William J. Hughes,
Appellee-Plaintiff.                                       Judge

                                                          Cause No. 29D03-0810-FB-421




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1502-CR-83 | July 14, 2015               Page 1 of 8
                                        Statement of the Case
[1]   Daniel R. Jones appeals his sentence following the revocation of his probation.

      He presents a single issue for our review, namely, whether the trial court abused

      its discretion when it ordered him to serve all nineteen years of his previously

      suspended nineteen-year sentence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In September 2008, Jones hit a man and broke his jaw in the course of a

      “barroom brawl.” Supp. Tr. at 13. As a result, in 2009, Jones pleaded guilty to

      aggravated battery, a Class B felony. At sentencing, the trial court stated in

      relevant part as follows:

              Mr. Jones, your record establishes that you have a history of
              criminal or delinquent behavior. It establishes that you have a
              history of criminal behavior that’s associated with substance
              usage. You have a history of engaging in violent criminal
              behavior towards other people when in substance [sic]. You
              have also a history of smaller property crimes. If I look only at
              your history, I’m going to tell you it speaks louder than the words
              you give me today that it is quite likely, quite probable, quite
              expected that you’ll commit another criminal offense. This
              offense was committed while you were facing major felony
              charges in Superior 1, [which] for some unknown reason took
              four years to get resolved. But you were on bond there when this
              happened. Your history is your history, can’t change it, won’t
              change it, speaks loudly, and indicates that you are a crime
              waiting to happen.



      Court of Appeals of Indiana | Memorandum Decision 29A05-1502-CR-83 | July 14, 2015   Page 2 of 8
        . . . I’m only looking at your convictions, the ones where you
        either pled guilty or were convicted of, as being a determinant of
        an aggravating factor. But it is an aggravating factor.

                                                ***

        Mr. Jones, I want you to know with your record I could send you
        to prison for 20 years. Nobody would reverse me. Nobody
        would disagree with me. And you’d sit on a dungy [sic] for 20
        years. I want you to understand that. It’s time for you to get a
        clue through here. You pretty much reached the end of your
        rope. You pretty much reached the end of what you can get by
        with, and any slip up at this point in time is going to be painful
        beyond imagination. A 20 year sentence means you’ll next see
        your daughter, you’ll next get to hold her and to talk to her and
        to be a part of her life when she’s in middle school. Understand
        that and change your criminal ways.

                                                ***

        Now, in my estimation this is a case that you should do some
        heavy prison time for. You broke a man’s face. You broke a
        man’s face. You did that, Mr. Jones. And there was no reason
        for you to do that. You weren’t even standing next to the guy.
        You didn’t need to break his face. But if I give you what I think
        is appropriate here and have to make it consecutive to Superior
        Court 1, then I think there’s a high risk that I take maybe the one
        last chance that you say you finally got the message and I turn
        you into a hardened criminal, because you’ll come back. You’re
        going to come back. You’re going to be in this community and
        you’re going to continue to wreak havoc. So I’m not going to do
        that today because if I do that today, I don’t have an opportunity
        to back off of it because I only get you once. But I want you to
        understand something, Mr. Jones. I’m going to be giving you a
        very, very, very, very, very long and heavy suspended sentence,
        as long as I can under the terms of this plea. And you have my
        promise that if you lied to me today about changing your life and

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              you’re back here, and you will be, I won’t have any problem
              sending you away so that you don’t see your little girl until she’s
              in middle school. . . . So now that I’ve had my say and my little
              tirade and you’ve heard what I’ve had to say, and thank you for
              listening, and so you know where I’m coming from I’ll tell you
              what your sentence is going to be.

              So you have 20 years at the Indiana Department of Correction[].
              I’m suspending all but one year of that. I’m requiring that one
              year be served on work release and I’m requiring that that be
              served consecutive to the Superior Court 1 case. I’m placing you
              on probation for ten years. . . . You have my word as long as I sit on
              this bench, you so much as violate by a whisper one of those rules and it
              puts anybody in this community at risk, you will do 19 years. Don’t
              challenge me. Don’t test me. I’m not threatening you. I’m not trying to
              intimidate you. I am giving you a promise. I won’t forget this sentence.
              I won’t forget that promise. And that’s what’s going to happen.


      Id. at 46-53 (emphasis added).1


[4]   During the early morning hours of February 1, 2014, Jones was drinking with

      friends at a bar in Noblesville and became intoxicated. At some point, Jones

      exited the bar and vomited on a sidewalk. A group of men standing nearby saw

      Jones vomiting and started laughing. Jones became angry and, approaching

      one of the men, Michael Withrow, Jones said, “Who’s got the big mouth?” Tr.

      at 22. Jones drew close to Withrow and said, “Was it you, bitch?” Id.

      Withrow pushed Jones to the ground. Then a woman “c[ame] out of nowhere




      1
        Jones has not included in his appendix on appeal a presentence investigation report or other document
      showing the details of his criminal history.

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      and blast[ed Withrow] right upside the head.” Id. at 23. At some point, Jones

      got up and “came back after [Withrow] throwing punches.” Id. at 47. At some

      point, Withrow was “knocked out cold, unconscious” and appeared to be

      having a seizure. Id. at 11. Jones crouched down over Withrow and said, “Ah,

      did you get knocked out?” Id. at 12. Jones then “proceeded to hit [Withrow]

      with both arms, with winding[-]up[,] closed[-]fist punches to his head.” Id.

      Eventually, police officers arrived and arrested Jones. Withrow was

      hospitalized for his injuries, including brain hemorrhaging. Withrow spent two

      days in the intensive care unit and one or two more days in the hospital before

      being released.


[5]   On February 6, 2014, the State filed a notice of probation violation alleging that

      Jones had committed new criminal offenses, namely, battery, as a Class C

      felony, and three counts of battery, as Class A misdemeanors. Following a

      hearing, the trial court found that Jones had violated his probation, and the

      court ordered that Jones serve all nineteen years of his suspended sentence in

      the Department of Correction. This appeal ensued.


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

      serve all nineteen years of his suspended sentence in the Department of

      Correction. Probation is a matter of grace left to trial court discretion, not a

      right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007). The trial court determines the conditions of probation and


      Court of Appeals of Indiana | Memorandum Decision 29A05-1502-CR-83 | July 14, 2015   Page 5 of 8
      may revoke probation if the conditions are violated. Ind. Code § 35-38-2-3.

      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. Prewitt, 878 N.E.2d at 188. 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. Id. Accordingly, a trial

      court’s sentencing decisions for probation violations are reviewable using the

      abuse of discretion standard. Id. An abuse of discretion occurs where the

      decision is clearly against the logic and effect of the facts and circumstances. Id.


[7]   Indiana Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if it

      finds a probation violation and 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.


[8]   Here, Jones does not challenge the finding that he violated his probation.

      Rather, he argues that the sanction imposed was not warranted and should be

      revised. In particular, Jones maintains that the trial court’s “actions [in
      Court of Appeals of Indiana | Memorandum Decision 29A05-1502-CR-83 | July 14, 2015   Page 6 of 8
       imposing sentence] have a perfunctory feel” in that the court had “promised” to

       impose the nineteen-year sentence if Jones violated his probation and the court

       “offered no explanation as to why no other prison sentence . . . would be

       satisfactory.” Appellant’s Br. at 8 (emphasis original). Jones also contends that

       his sentence is “unjust and unreasonable and constitute[s] an abuse of

       discretion.” Id. at 10.


[9]    First, it is well settled that when we review a trial court’s decision to order a

       defendant’s previously suspended sentence to be executed after revoking

       probation, we will not review the propriety of an original sentence. Abernathy v.

       State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). So, to the extent Jones

       contends that the nineteen-year suspended sentence originally imposed was

       unreasonable, that contention must fail.2


[10]   Second, the trial court is not obligated to explain its reasons for imposing

       sentence pursuant to Indiana Code Section 35-38-2-3(h). See, e.g., Berry v. State,

       904 N.E.2d 365, 366 (Ind. Ct. App. 2009) (holding trial court not required to

       issue detailed sentencing statement when reinstating a portion of an already

       imposed sentence). Again, the trial court has discretion under Indiana Code

       Section 35-38-2-3(h) to impose all of a suspended sentence after probation is

       revoked. Jones does not challenge any part of the trial court’s 2009 sentencing

       statement, including the court’s characterization of Jones’ criminal history or



       2
        Likewise, we do not review sentences imposed after the revocation of probation under Indiana Appellate
       Rule 7(B). See Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 29A05-1502-CR-83 | July 14, 2015             Page 7 of 8
       the court’s statement that Jones deserved “heavy prison time” for the 2008

       aggravated battery. Supp. Tr. at 49. And Jones’ probation violation was not a

       mere technical violation but a significant violation which resulted in severe

       injuries to his victim. Given Jones’ criminal history and that he, while on

       probation for aggravated battery, punched an unconscious man in the head, we

       cannot say that the trial court abused its discretion when it ordered Jones to

       serve all of his nineteen-year suspended sentence in the Department of

       Correction.


[11]   Affirmed.


       Baker, J., and Friedlander, J., concur.




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