MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                         Oct 31 2017, 8:44 am
this Memorandum Decision shall not be
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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Alan Grigsby,                                    October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         11A01-1706-CR-1360
        v.                                               Appeal from the Clay Circuit
                                                         Court
State of Indiana,                                        The Honorable Joseph D. Trout,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         11C01-0905-FA-159



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017           Page 1 of 6
                                             Case Summary
[1]   Jeffrey Alan Grigsby appeals the revocation of his probation, claiming that the

      trial court abused its discretion in ordering the execution of the remainder of his

      suspended sentence. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   In May 2009, the State charged Grigsby with class A felony dealing in

      methamphetamine, class C felony possession of methamphetamine, two counts

      of class D felony possession of a controlled substance, and class A

      misdemeanor resisting law enforcement. In December 2009, pursuant to a plea

      agreement, Grigsby pled guilty to the lesser included offense of class B felony

      dealing in methamphetamine; the State dismissed the remaining charges; and

      the trial court imposed a twelve-year sentence, with ten years executed and two

      years suspended to probation.


[3]   Grigsby was released to probation in January 2016. In March 2016, the State

      filed a petition to revoke probation, alleging that Grigsby violated his probation

      by testing positive in three drug screens administered earlier that month,

      admitting to using illegal drugs once that month, and failing to pay fees. In

      April 2016, Grigsby admitted the alleged violations and reached a sentencing

      agreement with the State. Pursuant to that agreement, the trial court ordered

      Grigsby to serve twenty-two days in the Department of Correction, which

      amounted to time already served in custody prior to the violation hearing. The




      Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017   Page 2 of 6
      court also ordered Grigsby to serve one year of his remaining probationary

      period on electronic home detention.


[4]   In May 2016, the State filed a second petition to revoke probation, alleging that

      Grigsby violated his probation by possessing marijuana, methamphetamine, a

      controlled substance, and paraphernalia, testing positive in a drug screen

      administered in April, and failing to pay fees. In August 2016, Grigsby

      admitted the alleged violations. The trial court ordered him to serve seventy

      days in the Department of Correction, which amounted to time already served

      in custody prior to the violation hearing.


[5]   In December 2016, the State filed a third petition to revoke probation, alleging

      that Grigsby violated his probation by admitting to using illegal drugs on three

      occasions in August and September, failing to comply with his drug screen call-

      in program, failing to report for drug screens on four occasions in October and

      November, and failing to pay fees. In February 2017, the State filed an

      amended petition, alleging that Grigsby also violated his probation by testing

      positive in a drug screen administered earlier that month. In May 2017,

      Grigsby admitted the violations alleged in the amended petition. He asked “for

      a ninety (90) day sentence” and to be “returned to probation with the additional

      term of enrolling [in] and completing” a residential drug treatment program.

      Tr. Vol. 2 at 121. The trial court reviewed Grigsby’s prior probation violations

      and remarked,


              [W]e sta[r]ted out with this case and we had a third petition to
              revoke probation and then -- then that was amended too because

      Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017   Page 3 of 6
              you continued to use methamphetamine even though you knew
              that this was pending. I don’t think there’s any amount of drug
              treatment that we can offer you that would be effective in regard
              to your addiction. I think you have to be in a complete sober
              living environment and I believe the Indiana Department of
              Correction[] to be a sober living environment and I would allow
              you, as soon as I learn how to put this in a sentencing order
              about Purposeful Incarceration, if you can get the help you need,
              I would be willing to consider a modification of your sentence
              […] and then make sure we can get you into some sort of
              treatment program right away.


      Id. at 123. The trial court revoked Grigsby’s probation, ordered him to serve

      the remaining 638 days of his probationary period in the Department of

      Correction, and recommended that he be incarcerated at a facility with certain

      drug treatment programs. This appeal ensued.


                                     Discussion and Decision
[6]   Indiana Code Section 35-38-2-3(h) provides that if a court finds that a person

      has violated a condition of probation at any time before termination of the

      probationary period, the court may impose one 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.

      Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017   Page 4 of 6
[7]   “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). “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.” Id. “[A] trial court’s sentencing decisions for probation violations

      are reviewable using the abuse of discretion standard. An abuse of discretion

      occurs where the decision is clearly against the logic and effect of the facts and

      circumstances.” Id. (citation omitted).


[8]   Grigsby contends that the trial court abused its discretion in ordering the

      execution of his entire suspended sentence because he is purportedly ineligible

      to participate in Department of Correction drug treatment programming, which

      lasts longer than the time remaining on his sentence. He asserts that he called a

      residential treatment center “two weeks before the probation revocation

      hearing, and it had an opening which he hoped to fill.” Appellant’s Br. at 11.

      Grigsby offers no documentation that supports this assertion or establishes that

      he would be able to complete the center’s treatment program before the

      expiration of his probationary period. Moreover, Grigsby admitted at the

      revocation hearing that he had previously participated in a drug treatment

      program through the Department of Correction, Tr. Vol. 2 at 119, which

      obviously failed to help him overcome his addiction to illegal drugs. He offers

      nothing but unconvincing assurances that he would fare any better in a

      residential treatment program.




      Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017   Page 5 of 6
[9]    Grigsby also complains that the trial court abused its discretion in revoking his

       probation because he suffers from several health problems, including a hernia

       and cirrhosis of the liver, which requires dialysis and an expensive drug

       regimen. The trial court voiced skepticism of Grigsby’s unsupported claim that

       he would be unable to receive state financial assistance for his medication while

       incarcerated, and it also noted that he had received only “a slap on the wrist”

       after his first violation proceeding “because of [his] health problems[.]” Id. at

       122, 121. Despite his health issues, Grigsby repeatedly violated his probation

       by using illegal drugs, and he even used methamphetamine while his third

       petition was pending. Up to that point, the trial court had demonstrated

       remarkable patience with Grigsby’s substance abuse issues and had given him a

       lifeline that he could have used to pull himself into a rehabilitated life. Instead

       of using that lifeline to his advantage, Grigsby chose to hang himself with it and

       cannot now be heard to complain. Under the circumstances, we cannot

       conclude that the trial court abused its discretion in ordering the execution of

       the remainder of Grigsby’s suspended sentence. Therefore, we affirm.


[10]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A01-1706-CR-1360 | October 31, 2017   Page 6 of 6
