MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 04 2018, 9:37 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
Ronald K. Smith                                          Curtis T. Hill, Jr.
Public Defender                                          Attorney General of Indiana
Muncie, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel L. Jones,                                         September 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-949
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff                                       Vorhees, Judge
                                                         Trial Court Cause No.
                                                         18C01-1507-F4-8



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018               Page 1 of 4
                                          Case Summary
[1]   Daniel L. Jones appeals the trial court’s order requiring him to serve three years

      of the previously suspended portion of his sentence in the Department of

      Correction for violating his probation. Because Jones committed recurring

      criminal offenses while on supervised probation, we find no abuse of discretion

      and affirm the trial court.



                            Facts and Procedural History
[2]   In 2015, Jones was charged with escape, a Level 4 felony; resisting law

      enforcement, a Level 6 felony; and neglect of a dependent, a Level 6 felony. In

      February 2016, Jones pled guilty to the escape charge and the State dismissed

      the other charges. At the sentencing hearing, the trial court noted that Jones,

      age twenty, had prior juvenile adjudications and adult convictions and was on

      supervised probation when he committed the escape offense. Tr. pp. 8-9. The

      trial court sentenced Jones to four years, with 304 days executed and 1156 days

      suspended, and ordered him to serve three years on supervised probation.


[3]   On December 12, 2017, the State filed a petition to revoke Jones’s probation

      alleging that he committed two new criminal offenses on November 24, 2017:

      residential entry and criminal mischief. The next month, on January 30, 2018,

      the State amended its petition alleging that Jones committed five new criminal

      offenses on January 24, 2018: resisting law enforcement, possession of

      methamphetamine, possession of a narcotic drug, leaving the scene of an


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018   Page 2 of 4
      accident, and operating a motor vehicle without ever receiving a license. At the

      fact-finding hearing, the trial court found that the State proved by a

      preponderance of the evidence that Jones violated his probation “by

      committing the offenses of residential entry and resisting law enforcement.” Id.

      at 27.1


[4]   At the dispositional hearing, Jones asked to be “released on GPS or house

      arrest” and testified:


                 I have four kids and I know I’ve messed up in the past, but I
                 really want—need to get out to take care of my children. I know
                 that’s not an excuse, that I have children, but I just want to get
                 out to take care of my kids right now at this moment.


      Id. at 32. The trial court ordered him to serve three years in the DOC.


[5]   Jones now appeals.



                                     Discussion and Decision
[6]   Probation revocation is a two-step process. First, the trial court must make a

      factual determination that a violation of a condition of probation actually

      occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court

      must determine if the violation warrants revocation of probation. Id. When a

      probationer admits to the violation, the court can proceed to the second step




      1
          Jones later pled guilty to committing these two offenses in the underlying criminal cases.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018                 Page 3 of 4
      and determine whether the violation warrants revocation. Id. A probationer

      who admits to the violation must be given an opportunity to offer mitigating

      evidence suggesting the violation does not warrant revocation. Id. A trial

      court’s sentencing decision for violating probation is reviewed for an abuse of

      discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007); Ripps v. State, 968

      N.E.2d 323, 326 (Ind. Ct. App. 2012).


[7]   Jones concedes that he violated his probation. Appellant’s Br. p. 9. He argues,

      however, that the trial court abused its discretion by ordering him to serve three

      years in the DOC because he must take care of his four children. He asks to “be

      restored to supervised probation.” Id. at 11.


[8]   However, the trial court has already given Jones the chance to take care of his

      children, and instead he continued committing criminal offenses. Jones was on

      supervised probation when he committed the escape offense in 2015. After the

      trial court sentenced Jones to supervised probation in 2016, he committed two

      new criminal offenses. Notably, he committed the second of his new criminal

      offenses shortly after the State filed the original petition to revoke his probation.

      Therefore, considering his recurring criminal offenses while on supervised

      probation, the trial court did not abuse its discretion in ordering Jones to serve

      three years of the previously suspended portion of his sentence in the DOC

      rather than returning him to probation.


[9]   Affirmed.


      Riley, J., and Kirsch, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-949 | September 4, 2018   Page 4 of 4
