MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           FILED
this Memorandum Decision shall not be                       May 23 2016, 8:51 am
regarded as precedent or cited before any
                                                                 CLERK
court except for the purpose of establishing                 Indiana Supreme Court
                                                                Court of Appeals
the defense of res judicata, collateral                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Gregory F. Zoeller
Wieneke Law Office, LLC                                 Attorney General
Brooklyn, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Graylon D. Bell,                                        May 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A04-1511-CR-1851
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D01-1308-FC-2405



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1511-CR-1851| May 23, 2016   Page 1 of 5
                                          Case Summary
[1]   The trial court revoked Graylon D. Bell’s probation and ordered him to serve

      his entire suspended sentence in the Indiana Department of Correction. Bell

      now appeals contending that the trial court abused its discretion by ordering

      him to serve “the maximum sentence.” Appellant’s Br. p. 6. Given Bell’s

      extensive criminal history and numerous probation violations, we conclude that

      the trial court did not abuse its discretion when it ordered Bell to serve his entire

      suspended sentence in the DOC for violating his probation merely four months

      after being released from the DOC. We therefore affirm.



                            Facts and Procedural History
[2]   In August 2013, the State charged Bell with Class C felony intimidation and

      with being a habitual offender. Bell and the State entered into a plea

      agreement. Pursuant to that agreement, Bell pled guilty to intimidation and

      admitted being a habitual offender. The trial court, in accordance with the plea

      agreement, sentenced Bell to an aggregate term of ten years, with four years

      executed at the DOC, six years suspended, and a minimum of two years on

      probation. Appellant’s App. p. 168.


[3]   Bell was released from the DOC in April 2015 and signed his probation

      conditions in June 2015. Then, in August 2015, the probation department filed

      a notice of probation violation. The notice alleged that Bell violated his

      probation for (1) committing a new offense (domestic battery) on August 19; (2)


      Court of Appeals of Indiana | Memorandum Decision 84A04-1511-CR-1851| May 23, 2016   Page 2 of 5
      failing to report a change of address within forty-eight hours; and (3) missing a

      probation appointment on August 12. Following a hearing, the trial court

      found that Bell violated his probation for all three reasons. Id. at 189. The trial

      court then revoked Bell’s probation and ordered him to serve “the remainder of

      his suspended sentence of six (6) years” in the DOC. Id. at 192.


[4]   Bell now appeals.



                                Discussion and Decision
[5]   Bell contends that the trial court abused its discretion by ordering him to serve

      his entire suspended sentence in the DOC for violating his probation. Once a

      trial court has exercised its grace by ordering probation rather than

      incarceration, “the judge should have considerable leeway in how to proceed.”

      Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not

      given to trial courts and sentences were scrutinized too severely on appeal, trial

      judges might be less inclined to order probation. Id. Accordingly, a trial court’s

      sentencing decision for a probation violation is reviewable under 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.


[6]   Probation revocation is a two-step process. First, the trial court must determine

      that a violation of a condition of probation actually occurred. Woods v. State,

      892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is proven, then the trial

      court must decide whether the violation warrants revocation of probation. Id.


      Court of Appeals of Indiana | Memorandum Decision 84A04-1511-CR-1851| May 23, 2016   Page 3 of 5
      If the trial court finds that the probationer violated a condition of probation at

      any time before the probationary period ended, then the court may:

              (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.


      Ind. Code § 35-38-2-3(h).

[7]   On appeal, Bell does not contest that he violated the terms of his probation;

      instead, he argues that the trial court abused its discretion by ordering him to

      serve “the maximum sentence of 6 years.” Appellant’s Br. p. 6. He claims that

      “a shorter period of incarceration followed by placement in a community

      corrections program would have been a more appropriate disposition in this

      case.” Id. at 7-8.


[8]   As Bell concedes, he has “a lengthy criminal history.” Id. at 7. This history,

      which comprises nine pages of his PSI, includes convictions for, among other

      things, disorderly conduct, criminal conversion, child molesting, criminal

      trespass, battery, battery by means of a deadly weapon, theft, rape, invasion of

      privacy, stalking, operating a vehicle as an HTV, failure to return to lawful

      detention, and residential entry. In addition, also as Bell concedes, he has

      violated probation numerous times. Given Bell’s extensive criminal history and

      Court of Appeals of Indiana | Memorandum Decision 84A04-1511-CR-1851| May 23, 2016   Page 4 of 5
      failed probations, the trial court acted well within its discretion when it ordered

      Bell to serve his entire suspended sentence in the DOC for violating his

      probation, again, by committing yet another crime merely four months after

      being released from the DOC.

[9]   Affirmed.

      Barnes, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 84A04-1511-CR-1851| May 23, 2016   Page 5 of 5
