MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Jul 31 2017, 8:42 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Elsbury,                                         July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1703-CR-449
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-0809-FD-206



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017                   Page 1 of 5
                                        Statement of the Case
[1]   After Michael Elsbury (“Elsbury”) admitted that he had violated his probation,

      the trial court revoked two years of his previously suspended two and one-half

      year sentence. Elsbury now contends that the trial court abused its discretion in

      revoking two years of his suspended sentence. Finding no error, we affirm the

      trial court’s judgment.


[2]   We affirm.


                                                      Issue
              The sole issue for our review is whether the trial court abused its
              discretion in revoking two years of Elsbury’s previously
              suspended sentence.


                                                     Facts
[3]   In 2005, Elsbury was convicted of Class B felony child molesting. The trial

      court sentenced him to ten (10) years with eight (8) years suspended to

      probation. In 2008, Elsbury was convicted of Class D felony failure to register

      as a sex offender. The trial court sentenced him to three (3) years with two and

      one-half (2½) years suspended to probation. Elsbury was subsequently

      convicted of Class C felony failure to register as a sex offender.


[4]   In 2011, Elsbury was convicted in Ohio of two counts of non-support of a

      dependent as fifth degree felonies. In 2014, he transferred his probation to

      Florida so that he could live with his mother and stepfather. While he was

      living in Florida, Elsbury was convicted of two felonies for failing to register his

      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017   Page 2 of 5
      email and mobile phone number as a sex offender. Indiana filed a petition to

      revoke his probation in the 2008 Class D felony based on these two Florida

      convictions.


[5]   At the probation revocation hearing, Elsbury testified that he had twice violated

      his probation while serving his sentence for the 2005 Class B felony. He further

      testified that he had also violated probation and parole for the Class C felony.

      Elsbury also admitted that he had violated his probation for the Class D felony

      conviction by committing the two additional felonies in Florida. He further

      admitted that he had not been taking the registration requirements as seriously

      as he should have been. Elsbury also explained that he wanted to obtain his

      GED and go to welding school.


[6]   Following the hearing, the trial court stated as follows:


              Due to the repeatedly similar nature of the probation violations,
              the serious nature of the underlying conviction being child
              molesting a Class B felony, the Court finds that the culpability of
              [Elsbury] for continued failing to register is high. The severity of
              the crime, the B felony child molesting and then now there are
              three convictions for failing to register, three probation
              violations, a parole violation. The severity of the crime is high.


      (Tr. 35). The trial court then revoked two years of Elsbury’s previously

      suspended two and one-half-year sentence. Elsbury appeals.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017   Page 3 of 5
                                                  Decision
[7]   Elsbury’s sole argument is that the trial court abused its discretion in revoking

      two years of his previously suspended sentence. Upon determining that a

      probationer has violated a condition of probation, the trial court may “[o]rder

      execution of all or part of the sentence that was suspended at the time of initial

      sentencing.” IND. CODE § 35-38-2-3(h)(3). “Once a trial court has exercised its

      grace by ordering probation rather than incarceration, the judge should have

      considerable leeway in deciding how to proceed.” Prewitt v. State, 878 N.E.2d

      184, 188 (Ind. 2007). “If this discretion were not given to trial courts and

      sentences were scrutinized too severely on appeal, trial judges might be less

      inclined to order probation to future defendants.” Id. As a result, we review a

      trial court’s sentencing decision from a probation revocation for an abuse of

      discretion. Id. An abuse of discretion occurs where the decision is clearly

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


[8]   The record reveals that the trial court had ample basis for its decision to revoke

      two years of Elsbury’s previously suspended sentence. Significantly, as the

      State points out, Elsbury “committed two new felony offenses for failing to

      comply with registry requirements while he was on probation for a crime which

      was itself a registry violation.” (Elsbury’s Br. 8). In addition, we note that

      Elsbury was convicted of a Class B felony, which was followed by two

      probation violations. He also had three convictions for failure to register, three

      probation violations, and a parole violation. Based on this evidence, we



      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017   Page 4 of 5
      conclude that the trial court did not abuse its discretion when it revoked two

      years of Elsbury’s previously suspended sentence.


[9]   Affirmed.


      Riley, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-449 | July 31, 2017   Page 5 of 5
