MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                    Jul 03 2017, 8:50 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
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shaun S. Nesbit,                                         July 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1611-CR-2704
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1108-FB-2493



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017   Page 1 of 4
[1]   Shaun S. Nesbit appeals following the revocation of his probation. On appeal,

      Nesbit argues that the trial court abused its discretion in ordering him to serve

      the remainder of his previously suspended sentence in the Department of

      Correction (DOC).


[2]   We affirm.


                                       Facts & Procedural History


[3]   In 2012, Nesbit was convicted pursuant to a guilty plea of class B felony dealing

      in methamphetamine. He was sentenced to fourteen years, with six years

      executed and eight years suspended to probation. Several notices of probation

      violation were filed against Nesbit over the ensuing years. The one relevant to

      this appeal alleged that Nesbit had violated probation by committing multiple

      new offenses, testing positive for methamphetamines, amphetamines, and

      marijuana, and failing to report to probation. Nesbit admitted to violating

      probation in exchange for the dismissal of the new charges, and he requested

      that he be allowed to continue on probation on the condition that he enter a

      long-term drug treatment program. The trial court rejected Nesbit’s request and

      ordered him to serve the entirety of his previously suspended sentence in the

      DOC. Nesbit now appeals.


                                          Discussion & Decision


[4]   On appeal, Nesbit argues that the trial court abused its discretion by ordering

      him to serve the remainder of his previously suspended sentence in the DOC.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017   Page 2 of 4
      We review a trial court’s sentencing decision in a probation revocation

      proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148

      (Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the

      logic and effect of the facts and circumstances before the court. Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[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.” Id. “If the court finds the

      defendant has violated a condition of his probation at any time before the

      termination of the probationary period, and the petition to revoke is filed within

      the probationary period, then the court may order execution of the sentence

      that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

      2007); see also Ind. Code § 35-38-2-3(h).


[5]   Nesbit argues that in light of his ongoing struggles with substance abuse, he

      should have been allowed to enroll in a long-term substance abuse treatment

      program rather than ordered to serve his sentence in the DOC. 1 We are

      unconvinced. We note, as did the trial court, that Nesbit has received extensive

      treatment for his substance abuse, but nevertheless continues to abuse drugs and

      commit new crimes. Nesbit has been shown considerable lenience and given

      multiple opportunities to address his addiction, all to no avail. In the words of




      1
        Nesbit’s reliance on Ind. Appellate Rule 7(B) is misplaced. See Jones v. State, 885 N.E.2d 1286, 1290 (Ind.
      2008) (explaining that the sanctions imposed for a probation violation are not subject to review for
      inappropriateness pursuant to Ind. App. R. 7(B)).

      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017                 Page 3 of 4
      the trial court, Nesbit has “earned [his] way back to the DOC, plain and

      simple.” Transcript Vol. 3 at 26.


[6]   Judgment affirmed.


[7]   Kirsch, J. and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017   Page 4 of 4
