MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Nov 28 2016, 8:46 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jerry T. Drook                                          Gregory F. Zoeller
Marion, Indiana                                         Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward Flynn,                                           November 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1605-CR-1027
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Dana J.
Appellee-Plaintiff.                                     Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1101-FB-8, 27D02-1601-F6-
                                                        4



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016   Page 1 of 6
[1]   Edward Flynn admitted that he violated the terms of his probation by

      committing new criminal offenses. On appeal, he argues that the trial court

      abused its discretion in ordering that he serve 2 years and 333 days of his

      previously suspended six-year sentence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 12, 2011, Flynn pled guilty to two counts of robbery as Class C

      felonies under Cause No. 27D02-1101-FB-8 (FB-8). The trial court sentenced

      him to an aggregate term of ten years with four years served in the Department

      of Correction (DOC) and six years suspended to probation.


[4]   On July 12, 2015, while on probation for his convictions in FB-8, Flynn was

      charged under Cause No. 27H01-1503-CM-113 (CM-113) with two counts of

      Class A misdemeanor domestic battery, and ultimately pled guilty to one count.

      The trial court withheld judgment.


[5]   On January 3, 2016, while still on probation for his convictions in FB-8, Flynn

      battered his wife of one year, Melissa Craig, and her five-year-old son. Flynn

      was arrested and subsequently charged under Cause No. 27D02-1601-F6-4 (F6-

      4) with domestic battery in the presence of a child, a Level 6 felony, and battery

      on a child less than 14 years of age, a Level 6 felony. The trial court also issued

      a no-contact order in favor of Craig and her three children. Between January

      15 and February 29, 2016, Flynn made 169 completed phone calls from jail to


      Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016   Page 2 of 6
      Craig’s phone number. At the sentencing hearing, Craig admitted that Flynn

      had spoken to her and her five-year-old son. Based upon these telephone calls,

      the State amended the charging information in F6-4 to add three counts of

      Class A misdemeanor invasion of privacy.


[6]   On January 8, 2016, the State filed a petition to revoke Flynn’s probation under

      FB-8 based on the commission of additional crimes under CM-113 and F6-4.

      On March 4, 2016, Flynn pled guilty under F6-4 to the three counts of invasion

      of privacy, and the State dismissed the domestic battery and battery charges.

      Flynn also admitted to violating his probation under FB-8. At the sentencing

      hearing, Flynn presented testimony from his wife and seventeen-year-old step-

      son regarding the hardship incarceration would pose on his family. Flynn’s

      adoptive mother also testified about his rough childhood and that Flynn had

      been diagnosed and treated for mental health problems. Thereafter, the trial

      court sentenced Flynn to one year suspended to supervised probation on each

      of the invasion of privacy convictions and ordered such sentences to be served

      consecutive to the sentence in FB-8. With regard to the probation violation, the

      trial court ordered Flynn committed to the DOC for 2 years and 333 days of his

      remaining suspended sentence in FB-8. Flynn now appeals. Additional facts

      will be provided as necessary.


                                          Discussion & Decision




      Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016   Page 3 of 6
[7]   Flynn argues that the trial court abused its discretion when it ordered him to

      serve 2 years and 333 days of his previously suspended sentence in the DOC as

      a result of his probation violation.


[8]   Probation is a matter of grace left to trial court discretion, not a right to which a

      criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.

      App. 2005), trans. denied. Where a trial court has exercised its grace by granting

      a defendant probation in lieu of incarceration, it has considerable leeway in

      deciding how to proceed when the defendant then violates the conditions of his

      probation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the sanction

      imposed by the trial court upon a finding of a probation violation is reviewed

      on appeal for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953

      (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs where the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances before the court. Id.


[9]   The court has several alternative sanctions it may impose where it has found

      that a defendant has violated his probation. One of those sanctions is to order

      execution of all or part of the sentence that was suspended at the time of initial

      sentencing. Id.; see also Ind. Code § 35-38-2-3(h)(3). In doing so, trial courts are

      not required to balance aggravating and mitigating circumstances. Treece v.

      State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016   Page 4 of 6
[10]   In arguing that the trial court abused its discretion by failing to consider several

       of his proffered mitigating circumstances,1 Flynn relies upon Anglemyer v. State,

       868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. However,

       as we have held before, Anglemyer “applies to the imposition of an initial

       sentence—not a sentence imposed following the revocation of probation.”

       Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009). Flynn has cited no

       other authority that requires a trial court to give credence to a defendant’s

       proffered mitigating circumstances in deciding its sentencing disposition

       following a revocation of probation.2


[11]   Here, the trial court reinstated a portion of an already-imposed sentence, which

       Flynn cannot collaterally attack. See Stephens v. State, 818 N.E.2d 936, 939 (Ind.

       2004) (observing that a defendant cannot collaterally attack a sentence on

       appeal from a probation revocation). Moreover, we note that the trial court

       was authorized by statute to order all of Flynn’s remaining sentence executed.

       Instead, the court imposed less than half of the remaining suspended sentence.




       1
        Flynn’s asserted mitigating factors were that incarceration would present a hardship on his family, that he
       had a difficult childhood, that he had been diagnosed with mental health problems, and that his crime neither
       caused nor threatened serious harm to persons or property.
       2
         Even under the Anglemyer standard, a trial court is required to identify only those mitigating circumstances
       it finds significant. 868 N.E.2d at 490. We note that the trial court expressly indicated it had reviewed the
       sentencing submission Flynn filed with the court in which he set forth his proffered mitigating factors. We
       further note that the trial court set out Flynn’s sentence in F6-4 and FB-8 immediately following his evidence
       in support of his proffered mitigating factors. Under these circumstances, it can be inferred that the trial court
       did not find these mitigating circumstances to be significant.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016              Page 5 of 6
       Flynn has not shown that the trial court abused its discretion in ordering that he

       serve 2 years and 333 days of his previously suspended sentence.


[12]   Judgment affirmed.


[13]   Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016   Page 6 of 6
