MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                       Dec 09 2019, 9:19 am
regarded as precedent or cited before any
                                                                                   CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gregory Jones,                                           December 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1526
        v.                                               Appeal from the Wells Circuit
                                                         Court
State of Indiana,                                        The Hon. Kenton W. Kiracofe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         90C01-1009-FC-14




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019                Page 1 of 10
                                          Case Summary
[1]   In 2011, Gregory Jones pled guilty to Class C felony non-support of a

      dependent, and the trial court imposed a four-year suspended sentence and

      eight years of probation, the terms of which included faithful payment of child

      support. In 2015, the State filed a notice of violation of the terms of probation

      in which it alleged that Jones was in arrears in his child-support payments.

      Jones admitted the violation. In 2019, after many delays, the trial court ordered

      Jones to serve his previously-suspended four-year sentence. Jones contends that

      the trial court abused its discretion in revoking his probation because the State

      failed to establish that his failure to pay child support was intentional, knowing,

      or reckless. Because we disagree, we affirm.


                            Facts and Procedural History
[2]   As of July of 2010, Jones was behind over $17,000.00 in child-support

      payments for the two children he had with Samantha Miller. On September 22,

      2010, the State charged Jones with two counts of Class C felony non-support of

      a dependent child. On August 8, 2011, Jones pled guilty to one count of non-

      support of a dependent child. On October 27, 2011, pursuant to a written plea

      agreement, the trial court sentenced Jones to four years of incarceration, all

      suspended, and eight years of probation.

[3]   On February 13, 2015, the State filed a second petition for the revocation of

      Jones’s probation, alleging that he had failed to pay child support consistent

      with the terms of his probation. On September 16, 2015, the trial court held a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 2 of 10
      hearing on the State’s second petition at which Jones admitted, and the trial

      court found, that he had failed to pay child support as ordered. At some point

      in 2015, Jones applied for disability benefits, which were denied. In February

      of 2019, Jones reapplied for disability benefits, claiming that he was disabled as

      of April 26, 2018.

[4]   On June 26, 2019, following several continuances, the trial court held an

      evidentiary hearing. The State admitted evidence that Jones’s arrearage had

      increased to approximately $24,300.00, and Jones admitted that his last

      payment had been made in June of 2015. On June 28, 2019, the trial court

      ordered Jones’s probation be revoked and that he serve his previously-

      suspended four-year sentence.


                                Discussion and Decision
[5]   Jones argues that the trial court abused its discretion in revoking his probation.

      “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) (citing Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005)). The

      Indiana Supreme Court has held that “a trial court’s sentencing decisions for

      probation violations are reviewable using the abuse of discretion standard[,]”

      explaining that

              [o]nce 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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 3 of 10
                severely on appeal, trial judges might be less inclined to order
                probation to future defendants.
      Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).

[6]   An abuse of discretion occurs where the decision is clearly against the logic and

      effect of the facts and circumstances. Id. As long as the proper procedures have

      been followed in conducting a probation revocation hearing, “the trial court

      may order execution of a suspended sentence upon a finding of a violation by a

      preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

      App. 1999). Before the trial court may revoke probation due to a defendant’s

      failure to pay child support, the State must prove both a violation of the terms

      of probation occurred and that the violation was due to the defendant reckless,

      knowing, or intentional failure to pay child support. Runyon v. State, 939

      N.E.2d 613, 617 (Ind. 2010); Ind. Code § 35-38-2-3(g).


[7]   Where a violation of the terms of probation has been established, Indiana Code

      subsection 35-38-2-3(h)(3) allows the trial court to “[o]rder execution of all or

      part of the sentence that was suspended at the time of initial sentencing” and

      the “[c]onsideration and imposition of any alternatives to incarceration is a

      ‘matter of grace’ left to the discretion of the trial court.” Monday v. State, 671

      N.E.2d 467, 469 (Ind. Ct. App. 1996). “When reviewing an appeal from the

      revocation of probation, we consider only the evidence most favorable to the

      judgment, and we will not reweigh the evidence or judge the credibility of the

      witnesses.” Vernon v. State, 903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans

      denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 4 of 10
[8]    While Jones concedes that he owes a substantial sum of child support, he

       contends that the State failed to establish that his failure to satisfy his

       obligations was reckless, knowing, or intentional. “A person engages in

       conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person engages

       in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and

       unjustifiable disregard of harm that might result and the disregard involves a

       substantial deviation from acceptable standards of conduct.” Ind. Code § 35-

       41-2-2(c).

[9]    First and foremost, all of Jones’s evidence presented at his dispositional hearing

       addressed the time following the State’s petition to revoke his suspended

       sentence and probation. Put another way, Jones’s evidence only attempted to

       excuse Jones’s failure to pay after 2015 and has nothing to do with the missed

       payments on which his probation violation was actually based. On this basis

       alone, we conclude that the trial court did not abuse its discretion by revoking

       Jones’s probation. Jones presented no evidence whatsoever tending to establish

       that, prior to the filing of the petition to revoke his probation in February of

       2015, “his income was such that he was unable to pay support as ordered.”

       Smith v. State, 963 N.E.2d 1110, 1114 (Ind. 2012).

[10]   Furthermore, the evidence Jones presented at his dispositional hearing, even if

       credited fully, did not establish that he was unable to pay child support


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 5 of 10
       following his admission. Although Jones presented evidence that he twice

       applied for disability benefits, his first application in 2015 was denied. This

       denial supports a finding that Jones was not actually disabled until at least April

       26, 2018, the disability date claimed in his second application, which was still

       pending on the date of the dispositional hearing. As for his condition on that

       date, Jones testified that he is a gunshot victim who suffers from depression,

       anxiety, “PSD [sic],” a “foot issue,” and “pantaritis [sic]” limiting his ability to

       stand to one-and-a-half hours at a time. Tr. Vol. II p. 133. Even if all of this is

       true, Jones does not explain how his conditions would prevent him from

       finding any work at all. Indeed, Jones conceded that he is in fact able to work,

       i.e., he helps his mother around the house and does yard work in lieu of paying

       rent.

[11]   We, however, digress. To reiterate, even if the trial court had been required to

       credit all of Jones’s evidence, which it was not, it would not help him because

       none of that evidence has anything to do with the violations for which his

       probation was actually revoked. Jones has not established that he was unable

       to comply with his child support obligations prior to February of 2015, and as a

       result, the trial court did not abuse its discretion by revoking his probation and

       suspended sentence.

[12]   We affirm the judgment of the trial court.


       Vaidik, C.J., concurs.


       Riley, J., dissents with opinion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 6 of 10
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Gregory Jones,                                           Court of Appeals Case No.
                                                                19A-CR-1526
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge dissenting


[13]   I respectfully dissent from the majority’s conclusion that the trial court’s

       decision to imprison Jones was a proper exercise of its discretion. Jones

       admitted at the September 16, 2015, hearing on the second petition to revoke

       his probation that he had failed to pay his child support obligation as alleged by

       the State. These admissions were adequate to support a finding that he

       knowingly or intentionally violated his probation. See Runyon, 939 N.E.2d at

       617. However, in spite of his admissions, Jones was entitled to present


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019     Page 7 of 10
       mitigating evidence regarding his inability to pay and his bone fide efforts to do

       so in an effort to persuade the trial court that it should not imprison him. Id.


[14]   Jones testified at his June 26, 2019, dispositional hearing that he had been

       unable to work or pay support since 2015 because he was the victim of a

       shooting who suffered from depression, PTSD, and anxiety. Jones also had a

       physical ailment that prevented him from standing for more than an hour and a

       half at a time. Contrary to the majority’s implication, other facts apart from

       Jones’ dispositional hearing testimony supported the existence of Jones’ mental

       health conditions. At an August 26, 2015, status hearing, Jones’ counsel

       represented to the trial court that Jones had been hospitalized for a mental

       health episode, and at the next hearing in the matter, Jones brought

       documentation of his hospitalization that was accepted by the trial court. In

       addition, at a July 6, 2016, status hearing, the prosecutor was provided with

       documentation of a mental health examination Jones underwent as part of his

       ongoing efforts to procure disability benefits, outlined more fully below. After

       reviewing the documents, the prosecutor commented that they indicated Jones

       had “major limitation in his mental residual functional capacity, which means

       there’s—there are issues.” (Transcript Vol. II, p. 110). Jones was without

       savings, assets, or a vehicle. Jones had lived with his mother in Georgia since

       2015 and rode the bus back to Indiana twenty-five hours each way to attend the

       hearings in this matter.


[15]   Jones also presented evidence of his bone fide efforts to pay support. Beginning

       in 2015, Jones pursued disability benefits which he believed could be used in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 8 of 10
       part to meet his support obligations. His first application was denied, and Jones

       pursued appeals from that denial. Ultimately, those appeals failed. Jones

       reapplied for disability in February of 2019, and that reapplication was still

       pending as of the dispositional hearing in this matter.


[16]   The majority finds these facts to be irrelevant to the instant appeal because they

       occurred after the second petition to revoke was filed. However, the State

       presented evidence at the June 26, 2019, dispositional hearing as to Jones’

       arrears to date, not simply his arrears as of the filing of the petition to revoke.

       As previously noted, Jones was entitled to present this evidence to the trial

       court prior to disposition to explain why he should not be imprisoned for his

       admitted failure to pay. In addition, the majority implies that the fact that

       Jones averred in his February 2019 disability reapplication, admitted into

       evidence at the dispositional hearing as Defendant’s Exhibit A, that he was

       disabled as of April 26, 2018, undercut his claim of disability as of 2015.

       However, Jones claimed April 26, 2018, as his date of disability on the

       February 2019 disability reapplication because that was one day after the

       administrative judge had denied his previous disability application, not because

       he claimed April 26, 2018, as his historic date of disability.


[17]   In light of this evidence of Jones’ inability to pay, his bone fide efforts to

       procure disability benefits to pay his support, and the fact that Jones had no

       other allegations of violations filed against him in either Georgia or Indiana

       despite this matter pending for over four years, I conclude that the trial court’s

       decision to imprison Jones for four years was against the facts and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 9 of 10
circumstances of this case and was, therefore, an abuse of its discretion. For

these reasons, I respectfully dissent.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1526 | December 9, 2019   Page 10 of 10
