Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                  Jul 15 2014, 10:30 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:

MICHAEL P. QUIRK                                 GREGORY F. ZOELLER
Muncie, Indiana                                  Attorney General of Indiana

                                                 JAMES B. MARTIN
                                                 Deputy Attorney General

                                                 LYUBOV GORE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

JERRIMICA T. MADDING,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A04-1312-CR-608
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Marianne L. Vorhees, Judge
                              Cause No. 18C01-1001-FC-1


                                       July 15, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                STATEMENT OF THE CASE

       Appellant-Defendant, Jerrimica T. Madding (Madding), appeals the trial court’s

revocation of his probation and the imposition of his previously suspended sentence.

       We affirm.

                                           ISSUE

       Madding raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion by ordering Madding to serve his previously suspended sentence

after he violated the terms of his probation.

                        FACTS AND PROCEDURAL HISTORY

       On January 15, 2010, the State filed an Information charging Madding with non-

support of a child, a Class C felony, alleging that he owed at least $15,000.00 in child

support payments. On June 7, 2010, Madding entered into a plea agreement with the

State and agreed to plead guilty to the lesser included offense of a Class D felony non-

support of a child. Pursuant to the terms of the plea agreement, the trial court sentenced

him to three years, suspended to probation. As further conditions of his probation,

Madding was ordered to, among others, not commit any other crimes, pay court costs and

probation user fees, and make weekly child support payments of $52.83, as well as an

additional $15.00 in arrears.

       On September 21, 2012, the State filed a petition to revoke Madding’s probation,

asserting that Madding failed to report to his probation officer and pay his child support

obligation. During the fact finding hearing on June 10, 2013, Madding admitted to the



                                                2
violations. The trial court revoked his probation but set the dispositional hearing for

September 16, 2013, “to see if [Madding] continues to report and comply.” (Transcript p.

5). On November 13, 2013, after resetting the dispositional hearing several times, the

trial court noted that Madding had only paid $12.001 in child support since the State had

filed its petition to revoke probation and concluded that Madding had received ample

opportunity to find continued employment and to pay his child support as ordered. The

trial court also found that Madding had “worked for at least four different employers and

did not pay support as ordered;” instead Madding was “using his income to support his

girlfriend’s children[.]” (Appellant’s App. p. 59). As a result, the trial court sentenced

Madding to three years executed, his entire previously suspended sentence.

       Madding now appeals. Additional facts will be provided as necessary.

                                DISCUSSION AND DECISION

       Without disputing the validity of the revocation of his probation, Madding

contends that the trial court abused its discretion by imposing his entire previously

suspended sentence because this sentence is inappropriate in light of the nature of the

offense and the character of the offender under Indiana Appellate Rule 7(B).

Specifically, Madding maintains that the imposed sentence is inappropriate because he

“complied with every rule of probation except the payment of child support.”

(Appellant’s Br. p. 5).




1
  Although the trial court in its order only references a payment of $12, the transcript also includes
testimony that Madding made a child support payment of $100 on June 22, 2013.


                                                  3
       Indiana Appellate Rule 7(B) permits an appellate determination of the

appropriateness of a criminal sentence and implements the permissive jurisdiction

granted in Article 7, Section 4 of the Indiana Constitution. Jones v. State, 885 N.E.2d

1286, 1290 (Ind. 2008). However, this appellate evaluation is not the correct standard to

apply when reviewing a trial court’s action in a post-sentence probation violation

proceeding. Prewitt v. State, 878 N.E.2d 184, 187-88 (Ind. 2007). A trial court’s action

in a post-sentence probation violation proceeding is not a criminal sentence as

contemplated by Ind. Appellate Rule 7(B) and therefore the review and revise remedy of

this rule is not available. Id. Probation violation sanctions are subject to appellate review

for an abuse of discretion. Id. at 188.

       Probation is a matter of grace left to the trial court’s discretion, not a right to

which a criminal defendant is entitled. Id. The trial court determines the conditions of

probation and may revoke probation if the conditions are violated. Id. Once a trial court

has exercised its grace by ordering probation rather than incarceration, the trial court

should have considerable leeway in deciding how to proceed. Id. If this discretion were

not afforded to the trial court and sentences were scrutinized too severely on appeal, a

trial court may be less inclined to order probation to future defendants. Id. Accordingly,

a trial court’s sentencing decisions for probation violations are reviewable using the

abuse of discretion standard. Id. An abuse of discretion occurs when the decision is

clearly against the logic and effect of the facts and circumstances. Id.

       On January 15, 2010, Madding was charged with non-support of a child after

determining that he owed at least $15,000.00 in child support payments. He entered into


                                             4
a plea agreement on June 7, 2010, and was ordered to make weekly child support

payments of $52.83, as well as an additional $15.00 in arrears, as part of his terms of

probation. The evidence reflects that his last payment of child support was in March

2012. In September 2012, the State filed its petition to revoke probation—Madding did

not contest the petition. From September 2012 onwards, Madding only made two child

support payments of $12.64 and $100 on June 7 and June 22, 2013, respectively. Despite

his delinquent history of non-payment of child support, the trial court granted Madding

leniency during the fact finding hearing on June 10, 2013 by allowing him another ninety

days to start complying with the terms of his probation. However, Madding did not make

any more child support payments between the fact finding hearing and the dispositional

hearing of November 12, 2013. During this hearing, Madding admitted that despite being

employed from at least midsummer to October 2013, he had foregone his obligation to

his own child and instead supported his girlfriend’s children, to which he was not the

biological father.

       In addition to not paying his child support as ordered, Madding also failed to

report to his probation officer and only called to reschedule his appointments after

receiving a reminder.     Mindful of the trial court’s discretion and given Madding’s

probation violations, the trial court’s decision is not clearly against the logic and effect of

the facts and circumstances. See Prewitt, 878 N.E.2d at 188.

                                       CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

by revoking Madding’s probation and imposing a three year executed sentence.


                                              5
     Affirmed.

ROBB, J. and BRADFORD, J. concur




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