MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Mar 10 2016, 8:16 am
regarded as 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
Patricia Caress McMath                                   Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey W. Smith,                                        March 10, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         52A04-1509-CR-1302
        v.                                               Appeal from the Miami Superior
                                                         Court
State of Indiana,                                        The Honorable Daniel C. Banina,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         52D02-1103-FC-49



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016         Page 1 of 7
[1]   In 2011, Appellant-Respondent Jeffrey Smith pled guilty to two counts of Class

      D felony battery resulting in bodily injury and was sentenced to an aggregate

      term of five years, with one year executed and four years suspended to

      probation. Smith was first alleged to have violated the terms of his probation in

      September of 2012. Smith admitted the alleged violations and was ordered to

      serve 180 days of his suspended sentence.


[2]   On December 31, 2014, Appellee-Petitioner the State of Indiana (the “State”)

      filed a second petition alleging that Smith had violated the terms of his

      probation. In this petition, the State alleged that Smith had failed to report to

      the probation department. The State amended its petition on April 20, 2015, to

      include an allegation that Smith had also violated the terms of his probation by

      committing a new criminal offense, i.e., resisting law enforcement by fleeing.

      Smith admitted to committing the alleged violations on August 3, 2015. The

      trial court revoked Smith’s probation and ordered Smith to serve the remaining

      three-and-one-half-year balance of his previously suspended sentence.


[3]   On appeal, Smith contends that the trial court abused its discretion in revoking

      his probation and ordering him to serve the remaining three-and-one-half-year

      balance of his previously suspended sentence. Concluding otherwise, we

      affirm.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 2 of 7
[4]   In 2011, Smith was charged with three counts stemming from an incident with

      a seven-year-old girl: Class C felony child molesting, Class D felony sexual

      battery, and Class D felony battery resulting in bodily injury. Smith was also

      alleged to be a habitual offender. Smith subsequently pled guilty to two counts

      of Class D felony battery resulting in bodily injury. In return for Smith’s guilty

      plea, the State agreed to drop the remaining charge. The trial court accepted

      Smith’s guilty plea and sentenced him to an aggregate term of five years, with

      one year executed and four years suspended to probation.


[5]   In September of 2012, the State first alleged that Smith had violated the terms of

      his probation. Specifically, the State alleged that Smith had committed an

      invasion of privacy, failed to register as a sex or violent offender, failed to report

      to probation, had violated a no-contact order, and committed the offense of

      false informing. Smith subsequently admitted the alleged violations and was

      ordered to serve 180 days of his suspended sentence.


[6]   On December 31, 2014, the State filed a second petition alleging that Smith had

      violated the terms of his probation. In this petition, the State alleged that Smith

      had violated the terms of his probation by failing to report to the probation

      department. The State amended its petition on April 20, 2015, to include an

      allegation that Smith had also violated the terms of his probation by committing

      a new criminal offense, i.e., resisting law enforcement by fleeing.


[7]   During an August 3, 2015 dispositional hearing, Smith admitted that he had

      committed the alleged probation violations. In admitting to the violations,


      Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 3 of 7
      Smith claimed that he had been confused about whether he had to report to the

      probation department while still on parole. Smith also claimed that he fled law

      enforcement because he believed that someone was coming to harm him. In

      light of Smith’s admissions, the trial court determined that Smith had violated

      the terms of his probation. The trial court then revoked Smith’s probation and

      ordered Smith to serve the remaining three-and-one-half-year balance of his

      previously suspended sentence. This appeal follows.



                                Discussion and Decision
[8]           Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled. The trial court
              determines the conditions of probation and may revoke
              probation if the conditions are violated. 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. 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. Accordingly, 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.


      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).

      With respect to the imposition of a sanction following the determination that

      one has violated the terms of their probation, Indiana Code section 35-38-2-3(h)

      provides as follows:


      Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 4 of 7
               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.


[9]    In claiming that the trial court abused its discretion in ordering him to serve the

       remaining three-and-one-half-year balance of his previously suspended

       sentence, Smith acknowledged that he was found to have committed two

       violations and that these violations were for failing to report to the probation

       department when he was released from prison and then for running from the

       police when they came to arrest him on the probation violation warrant. Smith

       argued, however, that the revocation of the entire balance of his previously

       suspended sentence was not warranted “given the nature of the violations and

       the circumstances under which they occurred.” Appellant’s Br. p. 7.


[10]   With regard to the alleged circumstances surrounding the instant violations,

       Smith asserts that he failed to report to the probation department because “there

       was confusion with his parole officers about whether he had to report to

       probation while still on parole.” Appellant’s Br. p. 7. Smith further asserts that

       in light of this alleged confusion, “once he learned [that] there was a parole

       violation warrant for him a day after he was released, he thought it would be


       Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 5 of 7
       better to not report to probation (because he believed reporting would ‘activate’

       probation) so that he would not get a probation violation warrant in addition to

       the parole warrant.” Appellant’s Br. p. 7. He also explained that he ran from

       the police officers who came to serve the probation violation warrant because

       “he had been told by the person he was staying with that she was sending a

       couple of guys to beat him up.” Appellant’s App. p. 7. The trial court was

       under no obligation to credit Smith’s explanations, and did not. See Klaff v.

       State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008) (providing that the trial court,

       acting as the trier-of-fact, is free to believe whomever it sees fit).


[11]   After finding that Smith had violated the terms of his probation, the trial court

       found that Smith had a significant criminal history, which included convictions

       for seven misdemeanors and fourteen felonies. Of those convictions, “a lot of

       them [were] convictions [for] crimes against persons[,]” four “were sexually

       based offenses[,]” and “one offense [was] for failure to register as a sex

       offender.” Tr. p. 28. The trial court also found that Smith had previously been

       on probation “several times” and that he had previously had his “probation and

       parole revoked.” Tr. p. 28. In light of these facts, the trial court determined

       that Smith was a “very high risk of reoffending.” Tr. p. 28. In imposing this

       sanction, the trial court stated that it did not see “any benefit of putting [Smith]

       on probation because I think you [would] just ultimately fail.” Tr. p. 28.


[12]   Smith’s challenge on appeal appears to be based on his belief that the trial court

       should not have considered his lengthy criminal history, including a history of

       probation and parole violations, when revoking his probation. Such a belief is

       Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 6 of 7
       without merit. In Prewitt, the Indiana Supreme Court held that the trial court

       acted within its discretion in considering the respondent’s multiple prior

       probation violations, past criminal history, and apparent unwillingness to

       complete court-ordered services when imposing a sanction after finding that the

       respondent had violated the terms of his probation. Prewitt, 878 N.E.2d at 188.

       Similarly here, we conclude that the trial court acted within its discretion in

       considering Smith’s lengthy criminal history, which again included numerous

       probation and parole violations, when revoking his probation and ordering

       Smith to serve the remainder of his previously suspended sentence in the DOC.


[13]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 52A04-1509-CR-1302 | March 10, 2016   Page 7 of 7
