      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                            Jan 29 2016, 9:03 am

      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
      Steven E. Ripstra                                        Gregory F. Zoeller
      Ripstra Law Office                                       Attorney General of Indiana
      Jasper, Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jayson S. Roberts,                                       January 29, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               63A05-1507-CR-1019
              v.                                               Appeal from the Pike Circuit Court
                                                               The Honorable Jeffrey L.
      State of Indiana,                                        Biesterveld, Judge
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               63C01-1408-F3-361



      Pyle, Judge.


                                       Statement of the Case
[1]   Appellant/defendant, Jayson S. Roberts (“Roberts”), appeals the trial court’s

      revocation of his probation and order that he serve the remainder of his
      Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016      Page 1 of 12
      suspended sentence for Level 3 felony child molesting 1 in the Indiana

      Department of Correction (“DOC”). He argues that: (1) the trial court abused

      its discretion in revoking his probation because, even though he violated the

      conditions of his probation and work release, there were extenuating

      circumstances to his violations; and (2) the trial court abused its discretion in

      ordering him to serve the remainder of his suspended sentence in the DOC

      because he had taken steps to remedy the violations prior to the revocation

      hearing. Because we find that Roberts violated the conditions of his probation

      and because he had previously been granted leniency through less restrictive

      placements and had continued to violate the terms of those placements, we

      affirm the trial court’s decision in both respects.


      We affirm.


                                                    Issues
                 1. Whether the trial court abused its discretion when it revoked
                 Roberts’ probation.

                 2. Whether the trial court abused its discretion when it ordered
                 Roberts to serve his entire suspended sentence in the DOC.

                                                     Facts
[2]   On September 16, 2014, Roberts pled guilty to Level 3 felony child molesting.

      Subsequently, on January 14, 2015, the trial court held a sentencing hearing




      1
          IND. CODE § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 2 of 12
      and sentenced Roberts to twelve (12) years, with six (6) years executed in

      community corrections on work release and the balance suspended to

      probation. At the sentencing hearing, the trial court noted that it had not yet

      approved the terms of probation because the terms had been updated with

      special conditions recommended for adult sex offenders. The trial court asked

      Roberts’ counsel whether he had gone over those terms with Roberts, and both

      Roberts and his counsel responded that he had. As a result, the trial court and

      Roberts signed the special conditions of probation, and Roberts initialed each

      individual condition.


[3]   Among other provisions, Roberts’ term number 26 of probation provided:

              You shall not access the internet or any other on-line service
              through use of a computer, cell phone, iPod, Xbox, Blackberry,
              personal digital assistant (PDA), pagers[,] Palm Pilots, televisions
              or any other electronic device at any location (including your
              place of employment) without prior approval of your probation
              officer. This includes any Internet service provider, bulletin
              board system, e-mail system or any other public or private
              computer network. . . .


      (State’s Ex. 1). In addition, Roberts was required to “remain employed” and to

      pay weekly fees of a minimum of $14.00 per day.


[4]   On February 27, 2015, Roberts’ work release coordinator filed a notice of

      community corrections violation alleging that Roberts had been terminated

      from his employment with Perdue Farms in Washington, Indiana. The notice

      stated that Roberts had “walked off the production line before the work was


      Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 3 of 12
      done” even though he had been warned that doing so would be considered

      voluntary termination. (App. 59). The notice also alleged that Roberts had

      violated term number 26 of his probation by accessing the internet—to use

      Facebook—and that he owed work release fees in the amount $536.25.


[5]   On March 2, 2015, the State moved to revoke Roberts’ probation. The State

      also alleged that Roberts had violated term number 26 of his probation and that

      he had violated the terms and conditions of the work release program by failing

      to maintain employment and pay work release fees.


[6]   On April 23, 2015, the trial court held a hearing on the motion to revoke

      Roberts’ probation. At the hearing, Chris Yon (“Yon”), the Chief Probation

      Officer in Pike County, testified. He said that he was friends with Roberts’

      father on Facebook and had seen one day that people were posting condolences

      on his Facebook page because his father had just died. Yon had become

      suspicious that Roberts was still using the internet because, in response to those

      condolences, Roberts’ father had written: “[P]lease don’t post this. My, my

      son doesn’t know just yet. He doesn’t want to find out through the internet that

      his grandfather [] passed away.” (Tr. 19). Yon testified that he had then found

      Roberts’ public Facebook profile, which documented that Roberts had changed

      his profile picture on January 25 and February 14, 2015. Roberts had also

      responded, on January 25, 2015, to a friend’s comment and had written, “I’m

      good[.] I have a deit [sic] its call [sic] workrelease and work for four more

      years.” (State’s Ex. 1) (grammar in original).



      Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 4 of 12
[7]   Scott Brown (“Brown”), the Director of the Wabash Valley Regional

      Community Corrections, testified that Roberts had lost his job at Perdue

      because Perdue had wanted him to work overtime, and he had left work in spite

      of that fact. Brown said that Roberts had been unemployed for about a month

      before he had found new employment. He also confirmed that Roberts was

      behind on paying his work release fees. According to Brown, Roberts “rarely”

      paid his rent. (Tr. 37).


[8]   Finally, Roberts testified. He admitted that he had used the internet and

      Facebook to talk to his relatives and “a couple of good friends” while he was on

      probation. (Tr. 50). He said that he had forgotten he was not allowed to use

      the internet and that when he had signed that probation condition in court, he

      had been “in a hurry” because he was “happy” and “just ready to get out of

      jail.” (Tr. 49). He also said that he might have “skipped pas[t]” a couple of the

      conditions, and he alluded to the fact that he had a learning disability and

      “AHD.” (Tr. 49).


[9]   With respect to his employment, Roberts offered the following explanation for

      losing his job at Perdue:

              I told . . . my head team leader at the time, that I needed a
              replacement. That I could get, I could possibly get sick on line.
              And I was already feeling lightheaded. And they would not
              listen to me. And I told ‘em [sic] several times. And eventually I
              just . . . got annoyed after about forty-five (45) minutes. Actually
              it was probably longer than that. To be honest. But I just got
              ignored. And I took off. And I told them. I’m like, I’m sick of


      Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 5 of 12
               it. I need to get something in my stomach now before I do get
               sick.


       (Tr. 42). With respect to his arrearage in fees, Roberts testified that he had

       planned to use part of his work checks to pay work release, but work release

       had not let him leave to get money orders for the payments.


[10]   At the end of the hearing, the trial court concluded that Roberts had violated

       the terms of his placement in community corrections by failing to maintain

       employment and pay his fees and that Roberts had violated the terms of his

       probation by accessing the internet. Subsequently, the trial court held another

       hearing on May 21, 2015. At that hearing, the trial court revoked Roberts’

       probation and ordered that he serve the balance of his previously suspended

       sentence in the DOC. In support of this decision, the court explained:

               The reason the Court ordered a Pre[s]entence Investigation
               update in this matter was so that the Court could make an
               informed decision as to how best to handle this case. And what
               we have before the Court is a pattern of violations of less
               restrictive placements. Community Corrections has been tried
               on more than one occasion. The local jail has been tried. And
               unfortunately, Mr. Roberts continues to violate the rules of
               community corrections. Even with a filing after the defendant
               was found to have violated his placement in community
               corrections in this matter. So the Court is left with no alternative
               here but to order that the defendant serve the balance of his
               sentence in the Indiana Department of Corrections.


       (Tr. 72-73). Roberts now appeals.



       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 6 of 12
                                                   Decision
[11]   On appeal, Roberts argues that the trial court abused its discretion by revoking

       his probation and by ordering him to serve his previously suspended sentence in

       the DOC. We will address each argument in turn.


           1. Revocation of Probation

[12]   First, Roberts argues that the trial court abused its discretion by revoking his

       probation. He asserts that, even though the trial court found he had violated

       the conditions of his probation and work release on three occasions, there were

       extenuating factors that led to those violations. Specifically, he notes that when

       he lost his job at Perdue, he was fired for refusing to work overtime even though

       he had already completed his shift and was not feeling well. He also points out

       that he gained new employment after he was fired and was employed at the

       time of the probation revocation hearing. As for his internet usage, Roberts

       reasserts that he did not remember that he was not allowed to use the internet.

       He also argues that the purpose of prohibiting him from using the internet was

       to protect children, and he contends that the trial court should have been lenient

       because there was no evidence he used the internet to contact or harm children.

       Finally, Roberts notes that his failure to pay his fees was caused by economic

       hardship and that his failure could not, according to law, serve as the sole basis

       for the revocation of his probation.


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

       a criminal defendant is entitled.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 7 of 12
       App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial

       court determines the conditions of probation and may revoke probation if the

       conditions are violated. Id. We review a trial court’s probation revocation for

       an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App.

       2005), trans. denied. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances before the court or

       when the trial court misinterprets the law. Jackson, 6 N.E.3d at 1042. In

       determining whether a trial court has abused its discretion, we look only to the

       evidence which supports the judgment and any reasonable inferences flowing

       therefrom. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (quoting

       Richardson v. State, 890 N.E.2d 766, 768 (Ind. Ct. App. 2001)), trans. denied. “In

       a sense, all probation requires ‘strict compliance’ because probation is a matter

       of grace, and once the trial court extends this grace and sets its terms and

       conditions, the probationer is expected to comply with them strictly.” Cain v.

       State, 30 N.E.3d 728, 731-32 (Ind. Ct. App. 2015) (quoting Woods v. State, 892

       N.E.2d 637, 641 (Ind. 2008)), trans. denied. As such, proof of a single violation

       of the conditions of probation is sufficient to support the decision to revoke

       probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g

       denied, trans. denied. Further, our standard of review for a community

       corrections violation mirrors that for a probation violation. See Holmes v. State,

       923 N.E.2d 479, 482-83 (Ind. Ct. App. 2010).


[14]   Roberts admits that he violated the condition of his probation prohibiting him

       from accessing the internet. As just stated, proof of a single violation of the

       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 8 of 12
       conditions of probation is sufficient to support the decision to revoke probation.

       Id. Roberts asserts that there were mitigating circumstances justifying his

       violation of probation, but those circumstances do not change the fact that he

       violated his probation and that he was required to comply with the terms of his

       probation “strictly.” See Cain, 30 N.E.3d at 732 (quoting Woods, 892 N.E.2d at

       641). Moreover, although Roberts claims he did not remember that he was not

       allowed to use the internet, the evidence introduced at trial indicated that he

       was informed of the prohibition. He initialed that term and signed the

       document as a whole, acknowledging that he had read it. He also told the trial

       court that he had gone over the terms with his lawyer. In light of these factors,

       we conclude that the trial court did not abuse its discretion in revoking Roberts’

       probation, and we need not address Roberts’ other violations. See Bussberg, 827

       N.E.2d at 44.


           2. Suspended Sentence


[15]   Next, Roberts argues that, even if the trial court did properly revoke his

       probation, the court abused its discretion in ordering him to serve his entire

       previously suspended sentence in the DOC. He claims that although he

       violated the terms of his probation, he had taken steps to cure the violations by

       the time of the probation revocation hearing. Specifically, he had stopped using

       the internet, he had found a new job, and he was beginning to pay his arrearage

       in fees.




       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 9 of 12
[16]   Under the Indiana Code, once a trial court has found that a person has violated

       a condition of probation within the probationary period, the trial court shall:


               (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.


       I.C. § 35-38-2-3(h).


[17]   In support of his argument that the trial court should have considered that he

       was working to remedy his violations, Roberts cites Ripps v. State, 968 N.E.2d

       323, 328 (Ind. Ct. App. 2012), where we held that the trial court had abused its

       discretion in revoking Ripps’ probation and ordering his entire sentence

       executed. Ripps had been convicted of child molesting as a Class C felony and

       then had violated the terms of his probation by residing within 1,000 feet of a

       youth program center and failing to informing all people living at his residence

       of his sexual conviction. Id. at 324. Based on this violation, the trial court had

       revoked Ripps’ probation and ordered the balance of his suspended sentence to

       be executed. Id. at 325. On appeal, we held that the trial court had abused its

       discretion because:


               Ripps was sixty-nine years old and suffering from serious health
               issues, including terminal cancer; he was attempting to adhere to
               his probation conditions, as evidenced by his going to the
               sheriff’s office to register his new address; although he was
       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 10 of 12
               initially in violation of the residency restriction, evidence reveals
               he was taking steps to correct the violation by finding a new
               residence; while he did live within 1,000 feet of the public library,
               this was only so by about twenty feet and some ambiguity exists
               in how this distance was measured; and, last, Ripps previously
               served time in prison from a crime that was later vacated as
               violative of our constitutional ex post facto provision.


       Id. at 328. Roberts argues that we should likewise conclude that the trial court

       abused its discretion here because he had also attempted to cure his probation

       violations.


[18]   However, we see significant differences between Ripps and Roberts. Whereas

       Ripps was only found to have violated one condition of his probation, Roberts

       was found to have violated three conditions. Further, as evidenced by the

       excerpt from our opinion in Ripps above, there was some ambiguity about

       whether Ripps had even violated his probation; Ripps’ violation, if it had

       occurred, had been slight; and there was evidence that Ripps had not intended

       to violate his probation. That is not the case here.


[19]   Instead, there was evidence here that Roberts knew he was violating his

       probation when he accessed the internet and that he was specifically warned he

       would be terminated from his employment if he left work. Despite these facts,

       Roberts still used Facebook and left work. Further, as the trial court stated

       when it ordered Roberts to serve the remainder of his suspended sentence in the

       DOC, Roberts had previously been placed in less restrictive placements and had

       continued to violate the rules of those placements. Accordingly, we conclude


       Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 11 of 12
that the trial court did not abuse its discretion in ordering Roberts to serve the

remainder of his suspended sentence in the DOC.


Affirmed.


Baker, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 63A05-1507-CR-1019| January 29, 2016   Page 12 of 12
