MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Nov 13 2019, 10:26 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Johnson,                                          November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1158
        v.                                              Appeal from the
                                                        Noble Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Michael J. Kramer, Judge
                                                        Trial Court Cause No.
                                                        57C01-1510-F4-9



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019                   Page 1 of 7
[1]   After David Johnson (“Johnson”) admitted to violating the terms of his

      probation for his conviction for Level 4 felony child molesting,1 the trial court

      revoked Johnson’s probation and ordered him to serve his previously suspended

      four-year sentence. Johnson raises one issue, which we restate as whether the

      trial court abused its discretion in ordering Johnson to serve his previously-

      suspended sentence because Johnson’s failure to comply with the terms of his

      probation was the result of a serious foot injury, which eventually resulted in his

      homelessness.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Between August 1, 2014, and November 1, 2014, Johnson engaged in fondling

      and touching with B.F., a twelve-year-old child. Appellant’s App. Vol. II at 16.

      Johnson and B.F. both masturbated together in a bedroom, Johnson touched

      B.F.’s penis, and B.F. touched Johnson’s penis. Id. at 15-17. On October 6,

      2015, Johnson was charged with Level 4 felony child molesting. Id. at 15. On

      March 3, 2016, Johnson pleaded guilty to the offense as charged and was

      sentenced to eight years with four years suspended to probation. Id. at 45-46.

      Johnson began his probation on October 23, 2018, and, within four months, he

      began violating the terms of his probation. Appellant’s Conf. App. Vol. II at 80.

      On January 24, 2019, Johnson failed to attend his sex offender treatment




      1
          See Ind. Code § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019   Page 2 of 7
      program, and at the time of the March 5, 2019 probation violation report he still

      had not attended any sessions. Id.; Tr. Vol. 2 at 13. Johnson also missed an

      appointment with his probation officer and failed to advise the probation officer

      about his change of address or provide a current phone number. Id. at 12-13.

      On March 5, 2019, the State filed a probation violation report, alleging that

      Johnson failed to: 1) report to probation; 2) register a new address within

      seventy-two hours of changing his residence; 3) provide a current phone

      number; and 4) attend sex offender treatment. Appellant’s App. Vol. II at 78-79;

      Tr. Vol. 2 at 12-13.


[4]   On April 29, 2019, Johnson admitted to violating the terms of his probation.

      Tr. Vol. 2 at 10-15; Appellant’s App. Vol. II at 6. He asked the trial court for a

      lenient sanction because he claimed unusual circumstances beyond his control

      made it difficult to follow all terms of his probation. Tr. Vol. 2 at 13.

      Specifically, he explained that he had broken his foot at work, and that the

      injury caused him to lose his job, and without a source of income, he eventually

      became homeless. Id. Thus, Johnson claimed he was not “snubbing his nose at

      the court” by failing to meet his probation obligations. Id.


[5]   The trial court reviewed Johnson’s criminal history, which included informal

      juvenile probation for criminal mischief and the following adult convictions and

      probation offenses: Class A misdemeanor theft; Class A misdemeanor

      residential entry; Class B misdemeanor criminal recklessness; Class D felony

      theft; Class A misdemeanor criminal trespass; Class B misdemeanor public

      intoxication; and three probation violations. Appellant’s Conf. App. Vol. II at 36-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019   Page 3 of 7
      37. After also considering the nature of Johnson’s probation violations and the

      nature of his underlying conviction for child molesting, the trial court revoked

      Johnson’s probation and ordered him to serve his previously suspended four-

      year sentence. Tr. Vol. 2 at 14; Appellant’s App. Vol. II at 6. Johnson now

      appeals. Johnson now appeals.


                                     Discussion and Decision
[6]   Johnson argues that the trial court abused its discretion in ordering him to serve

      the previously suspended four years of his initial eight-year sentence. In

      support, he makes three arguments. First, he contends that his injury prevented

      him from working, which eventually resulted in his homelessness. These

      circumstances, he argues, “rendered difficult his compliance with the myriad of

      probation conditions” and that such “challenging circumstances are unlikely to

      be repeated.” Appellant’s Amended Br. at 9. As to his delay in reporting a new

      address, Johnson argues that he could not provide a new address until he found

      a new home. Once he found a new home, he reported the new address to

      Noble County authorities before the State filed its probation violation report.

      Tr. Vol. 2 at 13. Second, Johnson argues that his criminal history did not justify

      the trial court’s sentence because his offenses occurred many years ago, noting

      that the last conviction and last probation violation occurred at least fifteen

      years before the trial court imposed the probation violation sanction here.

      Appellant’s Conf. App. Vol. II at 37. “Such a chronologically distant criminal

      history does not support imposition of the maximum sanction in this case.”

      Appellant’s Amended Br. at 10. Third, Johnson argues that the trial court abused

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019   Page 4 of 7
      its discretion in finding that the nature of Johnson’s underlying offense – child

      molesting – was a basis for the maximum sanction for Johnson’s probation

      violations. Johnson contends there is no legal basis to impose the maximum

      sanction based on the nature of the underlying offense.


[7]   We review Johnson’s claims under the following standard:


              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).


[8]   Upon determining that a probationer has violated a condition of probation, a

      trial 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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019   Page 5 of 7
              (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) (emphasis added). Thus, the imposition of an entire

      suspended sentence lies within the trial court’s discretion. Sanders v. State, 825

      N.E.2d 952, 958 (Ind. Ct. App. 2005), trans. denied.


[9]   Here, the initial sentencing court suspended four years, or fifty percent, of

      Johnson’s sentence for child molesting. Because probation is a matter of grace,

      not right, the trial court did not abuse its discretion in ordering Johnson to serve

      the suspended part of his sentence, see Prewitt v. State, 878 N.E.2d at 188,

      because Indiana Code section 35-38-2-3(h)(3) expressly allowed the trial court

      to do so: “[T]he trial court may . . . [o]rder execution of all or part of the

      sentence that was suspended at the time of initial sentencing.” Thus, the trial

      court acted within its discretion when it ordered Johnson to serve his entire

      suspended sentence as explicitly authorized by statute. See Sanders, 825 N.E.2d

      at 958. Johnson’s substantial criminal record -- convictions for one felony and

      five misdemeanors -- buttresses our conclusion that the trial court did not abuse

      its discretion in ordering Johnson to serve the suspended portion of his

      sentence. Whether to minimize the importance of that criminal record because

      most of the offenses were old, or “chronologically distant” to use Johnson’s

      words, was a matter for the trial court to weigh, not this court. As to Johnson’s

      claim this his misfortunes minimize his culpability for his probation violations,

      we find that the trial court was in a better position than this court to determine

      whether to credit such testimony and what bearing, if any, it should have on

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019   Page 6 of 7
       determining the sanction for Johnson’s probation violations. That said, we take

       note of the State’s argument that Johnson might have avoided these violations

       had he simply made one phone call to the probation department. At the March

       5, 2019 initial hearing on the probation violation, Johnson testified that he had

       access to a phone. Tr. Vol. 2 at 6. At the April 29, 2019 sentencing hearing on

       the probation violation, Johnson did not testify that he did not have access to a

       phone. Tr. Vol. 2 at 11-14. The trial court did not abuse its discretion in

       ordering Johnson to serve the previously suspended four years of his initial

       sentence.2


[10]   Affirmed.


       Baker, J., and Crone, J., concur.




       2
         Because we find ample grounds to affirm the trial court’s sentencing decision, we need not address
       Johnson’s claim that the trial court should not have cited the nature of Johnson’s underlying crime – Level 4
       felony child molesting – in explaining the sentence it imposed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1158 | November 13, 2019                  Page 7 of 7
