MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Feb 02 2016, 8:31 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
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Johnnie A. Winners,                                      February 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1505-CR-335
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Samuel R. Keirns,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D04-0709-FC-226




Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016          Page 1 of 6
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Johnnie A. Winners (Winners), appeals the imposition of

      his previously suspended sentence after the trial court revoked his probation.


[2]   We affirm.


                                                    ISSUE

[3]   Winners raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by ordering Winners to serve his previously

      suspended sentence after he violated the terms of his probation.


                             FACTS AND PROCEDURAL HISTORY


[4]   On January 11, 2008, Winners pled guilty to Count I, forgery, a Class C felony

      and Count II, theft, a Class D felony. On Count I, Winners was sentenced to

      six years at the Department of Correction (DOC), with four years executed and

      the remaining two years suspended to probation. As for Count II, Winners was

      sentenced to two and one-half years executed. Winners’ sentences were to run

      concurrently. The trial court’s order of probation issued on the same day

      explicitly required Winners to behave well and to refrain from possessing

      weapons or firearms as the terms and conditions of his probation.


[5]   On October 24, 2011, a Verified Petition for Revocation of Probation was filed

      as a result of Winners’ termination “from the ReEntry Court Program in

      consecutive cause number 02D04-0712-FC-309.” (Appellant’s App. p. 14).

      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016   Page 2 of 6
      After a probation violation hearing on December 20, 2011, Winners’ probation

      was extended by two years.


[6]   On February 5, 2015, Jemal Cooper (Cooper) was helping Winners’ daughter,

      Jamie Winners (Jamie), to move her possessions out of her grandmother’s

      house on New Heaven Avenue in Fort Wayne. Winners and his brother,

      Steven Winners (Steven), were also present. At some point, Jamie and Steven

      started arguing. The argument quickly escalated to the point where Steven

      grabbed Jamie by the neck and started choking her. Cooper attempted to pull

      Steven off of Jamie, and Steven punched Cooper. Steven then called Winners

      for help, who also punched Cooper. Cooper and Jamie ran out the door.

      Steven urged Winners to kill Cooper. Winners retrieved a shotgun, came out of

      the house, and aimed the shotgun directly at Cooper. Cooper and Jamie fled to

      the neighbor’s house and called the police.


[7]   On February 6, 2015, the Allen County Adult Probation Department filed a

      Verified Petition for Revocation of Probation alleging that Winners violated his

      probation by committing battery and possessing a firearm. On April 9, 2015,

      the trial court held a probation revocation hearing and found that Winners had

      violated the terms and conditions of his probation. The trial court ordered

      Winners to serve two years of his previously suspended sentence in the DOC.


[8]   Winners now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016   Page 3 of 6
                                   DISCUSSION AND DECISION

[9]    Winners claims that the trial court abused its discretion by revoking his

       probation. It is well established that probation is a favor granted by the State

       and is not a right to which a criminal defendant is entitled. Sparks v. State, 983

       N.E.2d 221, 224 (Ind. Ct. App. 2013). The decision to revoke probation lies

       within the sound discretion of the trial court. Id. Thus, a trial court’s decision

       to revoke probation and its subsequent sentencing decision are reviewed for an

       abuse of discretion. Id.


[10]   Once a trial court has concluded that probation has been violated, it may

       continue the defendant on probation, extend the probationary period for not

       more than one year beyond the original period, or order all or part of the

       previously-suspended sentence to be executed. Ind. Code § 35-38-2-3 (2014).


[11]   Winners alleges that the circumstances surrounding his present probation

       violation do not warrant the imposition of the entire balance of his previously-

       suspended sentence. Specifically, he argues that the incident occurred between

       the family members, he never discharged the firearm, and no one was injured.

       He claims that Cooper did not even feel any pain as a result of his strikes.

       Winners concludes that this incident was not the kind of incident that would

       warrant the “harshest punishment under Indiana law.” (Appellant’s Br. p. 5).


[12]   We disagree. One of the conditions to Winners’ probation was that he

       refrained from committing new offenses. In addition, Winners was prohibited

       from possessing a firearm. Winners signed the order of probation and was fully


       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016   Page 4 of 6
       aware of these basic rules. Winners should have followed them: he could have

       left the scene, or called the police, or even attempted to dissuade Steven from

       choking Jamie. Winners, however, did not do any of that. Instead, he willingly

       entered into a fight between Steven, who was battering Jamie, and Cooper, who

       was trying to stop the battery. He effectively assisted Steven by striking Cooper.

       When Cooper and Jamie fled from the house, Winners chose to arm himself

       with a shotgun, follow Cooper and Jamie out of the house, and aim the shotgun

       at Cooper. Winners’ battery of Cooper and possession of a firearm violated the

       two basic rules of his probation.


[13]   Moreover, this was not his first violation of probation. In 2011, Winners

       violated the terms and conditions of his probation in the current case by being

       terminated from the ReEntry Court Program. However, even then, his

       probation was not revoked; he was given leniency and was returned to

       probation with an extension of two years.


[14]   As such, because probation is a matter of grace and the fact that Winners

       violated his probation twice, the trial court’s decision to stop awarding favors to

       Winners in the light of his behavior is appropriate under the circumstances and

       well within the trial court’s sound discretion.


                                               CONCLUSION

[15]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in revoking Winners’ probation.


[16]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016   Page 5 of 6
[17]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-CR-335 |February 2, 2016   Page 6 of 6
