MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Mar 07 2019, 10:14 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
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry E. Jones,                                          March 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2483
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1102-FB-887



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019                     Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jerry Jones (Jones), appeals from the sanction imposed

      by the trial court following the revocation of his probation.


[2]   We affirm.


                                                    ISSUE
[3]   Jones presents one issue on appeal: Whether the trial court abused its

      discretion when it ordered him to serve the entirety of his previously-suspended

      sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 14, 2011, the State filed an Information, charging Jones with two

      Counts of Class B felony dealing in a schedule II controlled substance. On June

      29, 2011, Jones pleaded guilty to one Count of Class B felony dealing in a

      schedule II controlled substance, and the trial court sentenced him to twelve

      years with the Department of Correction (DOC), with four years suspended to

      probation. The trial court found as aggravating circumstances that Jones was

      on probation at the time he committed the offense, his previous opportunities

      for treatment had not been effective, and the offense was Jones’ third felony

      conviction. The date of Jones’ completion of his sentence and release to

      probation is not part of the record on appeal.


[5]   On March 7, 2017, the State filed a petition to revoke Jones’ probation, alleging

      that he had been arrested for the new offense of theft on January 25, 2017, in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019   Page 2 of 6
      Johnson County. On August 21, 2017, the State filed an amended petition to

      revoke Jones’ probation, alleging that he had committed the new offense of

      operating a motor vehicle while intoxicated on August 11, 2017. On October 9,

      2017, the State amended its petition a second time to include an allegation that

      Jones had committed the new offenses of aggravated battery, domestic battery

      while children were present, domestic battery, and criminal trespass on October

      4, 2017, in Johnson County.


[6]   On May 31, 2018, the trial court held Jones’ probation revocation hearing.

      Jones admitted that he had committed the new offenses, and the trial court

      revoked his probation. 1 On September 13, 2018, the trial court held Jones’

      dispositional hearing. By then Jones had pleaded guilty to, and been sentenced

      for, Level 6 felony theft, battery, and domestic battery. His new operating a

      motor vehicle while intoxicated charge was still pending. Jones testified that

      his conviction for theft for stealing a Lego set was the result of his wife leaving

      the store without telling him, causing him to seek her out past the point of sale

      without purchasing the toy. Jones also admitted that he had abused opiates,

      Xanax, and marijuana while on probation and that his wife’s act of flushing his

      Xanax down the toilet angered him on the day he committed the new battery

      offenses. However, Jones denied hitting his wife. Jones felt that he was in need

      of substance abuse treatment which he had never received.




      1
        A transcript of this hearing is not part of the record on appeal. It is unclear from the record whether Jones
      had already pleaded guilty to any of his new charges by the date of his revocation hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019                        Page 3 of 6
[7]   At the conclusion of the hearing, the trial court found that Jones was in need of

      the structured substance abuse treatment that would be available to him with

      the DOC. The trial court also found that Jones had been convicted originally of

      a dealing offense and that his newest convictions were felonies. The trial court

      ordered Jones to serve the four-year balance of his previously-suspended

      sentence.


[8]   Jones now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   It is well-settled that probation is a matter of grace which is left to the trial

      court’s discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). In

      exercising that discretion, the trial court may determine probation conditions

      and revoke probation if those conditions are violated. Id. If a trial court

      revokes probation, it may continue the person on probation, extend the

      probationary period for not more than one year, or order the execution of all or

      part of the previously-suspended sentence. Ind. Code § 35-38-2-3(h). The trial

      court has considerable leeway in deciding how to proceed in probation matters.

      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). If this were not so, trial court

      judges would be less inclined to order probation for defendants. Id. In light of

      this considerable leeway, “a trial court’s sentencing decisions for probation

      violations are reviewable using the abuse of discretion standard.” Id. An abuse

      of discretion occurs where the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it. Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019   Page 4 of 6
[10]   Here, Jones had a significant criminal history and had his probation revoked on

       at least one occasion in the past. Jones was given yet another chance in the

       community when he was granted probation in this case, but while exercising

       that conditional freedom, he had three sets of new contacts with the criminal

       justice system, resulting in three new felony convictions. Two of those new

       convictions involved violence. Jones has a long history of substance abuse and

       was offered treatment through his various contacts with the criminal justice

       system in 2000, 2004, 2009, and 2010. Jones did not avail himself of those

       opportunities and admitted to abusing opiates, Xanax, and marijuana while on

       probation in this case. Given these circumstances, we cannot conclude that it

       was an abuse of the trial court’s discretion to order Jones to serve his

       previously-suspended four-year sentence.


[11]   Jones argues that the trial court abused its discretion when it failed to consider

       his admissions to the new offenses as a mitigating sentencing factor. However,

       a trial court is not obligated to consider mitigating and aggravating

       circumstances when imposing a probation revocation sanction. See Treece v.

       State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied; see also Porter v. State,

       2018 WL 6839398, at *2 (Ind. Ct. App., Dec. 31, 2018) (rejecting Porter’s

       argument that the trial court should have accorded mitigating weight to his

       admission at his probation revocation hearing to a new offense). Even so, at his

       dispositional hearing, Jones attempted to shift blame for the theft offense and

       denied battering his wife, offenses to which he had already pleaded guilty. We




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019   Page 5 of 6
       find no abuse of discretion on the part of the trial court. Prewitt, 878 N.E.2d at

       188.


                                             CONCLUSION
[12]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it ordered Jones to serve his previously-suspended four-year

       sentence.


[13]   Affirmed.


[14]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2483 | March 7, 2019   Page 6 of 6
