MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                             Apr 12 2018, 6:41 am
this Memorandum Decision shall not be
                                                                       CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Laura A. Raiman                                          Curtis T. Hill, Jr.
R. Patrick Magrath                                       Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaedyn L. Clayburn,                                      April 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1710-CR-2500
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1703-F6-1707



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018      Page 1 of 9
                                        Statement of the Case
[1]   Jaedyn L. Clayburn appeals the extension of her probationary term following

      her conviction for operating a vehicle while intoxicated, as a Class A

      misdemeanor, and her sentence following her conviction for theft, as a Class A

      misdemeanor. Clayburn raises two issues for our review, which we restate as

      follows:


              1.       Whether the trial court abused its discretion when, as a
                       penalty for Clayburn’s violation of probation, the court
                       extended her probationary term.

              2.       Whether her sentence for theft is inappropriate in light of
                       the nature of the offense and her character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On February 16, 2016, Gethin Thomas, Clayburn’s stepfather, filed a police

      report in which he indicated that a ring worth $5,000 and a watch valued at

      approximately $3,500 had been stolen from his residence on February 15.

      Thomas stated that he suspected Clayburn had stolen the items.


[4]   Detective Chad Swank with the Bartholomew County Sheriff’s Office

      investigated the case. After several unsuccessful attempts by Detective Swank

      to contact Clayburn, on September 16, Clayburn went to the Bartholomew

      County Sheriff’s Office and spoke with Detective Swank. Clayburn admitted

      that she had stolen two televisions, a ring, and a watch. She also admitted that

      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018   Page 2 of 9
      she had stolen two diamond bracelets. As a result, the State charged her with

      one count of theft, as a Level 6 felony, in Cause Number 03D01-1703-F6-1707

      (“F6-1707”).


[5]   On September 26, the State charged Clayburn with one count of operating a

      vehicle while intoxicated, as a Class A misdemeanor, and one count of

      operating a vehicle with a schedule I or II controlled substance or its metabolite

      in the body, as a Class C misdemeanor, in cause number 03D01-1609-CM-5260

      (“CM-5260”). In that cause, Clayburn pleaded guilty to Count 1, operating a

      vehicle while intoxicated, as a Class A misdemeanor, and the trial court

      sentenced her to a one-year term suspended to probation. As a condition of

      probation, Clayburn was prohibited from using drugs or alcohol. The court

      also ordered Clayburn to obtain a substance abuse evaluation and to follow the

      recommendations of the evaluation. Thereafter, Clayburn pleaded guilty to

      theft, as a Class A misdemeanor, in F6-1707, and the trial court took her guilty

      plea under advisement.


[6]   The next day, the State filed a petition to revoke Clayburn’s probation in CM-

      5260. In its petition, the State alleged that Clayburn had violated her probation

      because she had failed to comply with the recommended substance abuse

      treatment and because she had tested positive for marijuana.1




      1
          The State also alleged that she had failed to pay costs and fees, but the State later withdrew that violation.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018                   Page 3 of 9
[7]   On September 26, the trial court held a sentencing hearing in F6-1707 and a

      hearing on the petition to revoke Clayburn’s probation in CM-5260. The trial

      court accepted Clayburn’s guilty plea in F6-1707 and sentenced her to one year

      suspended to probation. Also during the hearing, Clayburn admitted that she

      had violated her probation as alleged in CM-5260. As a result, the trial court

      extended the term of Clayburn’s probation in CM-5260 by six months and

      ordered that term to be served consecutive to her sentence in F6-1707. This

      appeal ensued.


                                     Discussion and Decision
                            Issue One: Probation Extension in CM-5620
[8]   Clayburn first contends that the trial court abused its discretion when it

      extended the term of her probation in CM-5260 by six months. “Probation is a

      matter of grace left to trial court discretion, not a right to which a criminal

      defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). The

      conditions for probation and whether to revoke that probation when those

      conditions are violated are left to the discretion of the trial court. Id.


              If the trial court determines that a probationer has violated a
              condition of probation . . . the court may impose one (1) of more
              of the following sanctions:


                       (1) Continue the person on probation, with or without
                           modifying or enlarging the conditions.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018   Page 4 of 9
                       (2) Extend the person’s probationary period for not more
                           than one (1) year beyond the original probationary
                           period.


                       (3) Order execution of all or part of the sentence that was
                           suspended at the time of initial sentencing.


      Ind. Code § 35-38-2-3(h) (2018). “We review a court’s sentencing decisions for

      probation violations for an abuse of discretion.” Knecht v. State, 85 N.E.3d 829,

      840 (Ind. Ct. App. 2017). “An abuse of discretion occurs where the decision is

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


[9]   Here, Clayburn asserts that the trial court abused its discretion when it extended

      the term of her probation because the probation violations were “relatively

      minor” and because the extension of her probation represents an undue

      hardship due to the “extraordinary complications of her physical and mental

      health.” Appellant’s Br. at 10. But the record reveals that the trial court had a

      sufficient basis for extending her probation. Clayburn admitted that she had

      violated her probation when she tested positive for marijuana and when she

      failed to comply with the recommended substance abuse treatment. As a result,

      the trial court extended her probation by six months, which was within its

      discretion pursuant to Indiana Code Section 35-38-2-3(h)(2). Given the




      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018   Page 5 of 9
       circumstances, we cannot say that the trial court abused its discretion when it

       extended the term of Clayburn’s probation in CM-5260 by six months.2


                         Issue Two: Appropriateness of Sentence in F6-1707

[10]   Clayburn next contends that her sentence in F6-1707 is inappropriate in light of

       the nature of the offense and her character. Indiana Appellate Rule 7(B)

       provides that “[t]he Court may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” The Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[11]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we




       2
         While Clayburn contends that the extension of her probation is an undue hardship because of her health,
       we agree with the State that Clayburn has not demonstrated “how an extra six months of probation will
       affect her physical or mental health, other than positively.” Appellee’s Br. at 11.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018           Page 6 of 9
       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

       “When reviewing the appropriateness of a sentence under Rule 7(B), we may

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence was

       suspended.” Prater v. State, 59 N.E.3d 314, 318 (Ind. Ct. App. 2016).


[12]   Here, Clayburn pleaded guilty to theft, as a Class A misdemeanor. A person

       convicted of a Class A misdemeanor may be imprisoned for up to one year.

       I.C. § 35-50-3-2. However, a court may suspend any part of that sentence. I.C.

       § 35-50-3-1(a). If a court suspends the sentence for a Class A misdemeanor in

       whole or in part, the court may place the person on probation for a period of

       not more than one year. I.C. § 35-50-3-1(b). Accordingly, the trial court

       sentenced Clayburn to one year, all suspended to probation, in F6-1707.


[13]   Clayburn asserts that her sentence is inappropriate in light of the nature of the

       offense because “Clayburn’s step-father and mother did not seek restitution.”

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018   Page 7 of 9
       Appellant’s Br. at 12. She further asserts that her offense “had a minimal

       impact on the victims of the crime[.]” Id. at 13. But Clayburn stole a watch

       valued at $3,500 and a ring valued at approximately $5,000. Further, Clayburn

       stole the items from her mother and stepfather. And, during the hearing, she

       admitted that she had stolen the items so that she could sell them and buy

       drugs. In light of the fact that Clayburn had stolen over $8,000 worth of jewelry

       from her own family so that she could get money to buy drugs, we cannot say

       that her sentence is inappropriate in light of the nature of the offense.


[14]   Clayburn further asserts that her sentence is inappropriate in light of her

       character. She contends that she had a relatively minor criminal history, that

       she had obtained her GED, that she had maintained a job, and that she has

       “significant physical and mental health conditions.” Id. at 12. But Clayburn

       was only twenty-one years old on the date of the sentencing hearing. And, at

       that time, she had already been convicted of driving while intoxicated and the

       instant theft charge. Additionally, Clayburn had violated her probation in CM-

       5260 when she failed a drug test and failed comply with the recommended

       substance abuse treatment. Further, the fact that she stole jewelry from her

       family in order to buy drugs reflects poorly on her character. Based on her

       criminal history, her probation violation, and the fact that she stole from her

       family so that she could buy drugs, we cannot say that Clayburn’s sentence of

       one year suspended to probation is inappropriate in light of her character.

       Accordingly, we affirm her sentence in F6-7107.


[15]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018   Page 8 of 9
Robb, J., and Altice, J., concur.




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