Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                                FILED
                                                             Dec 26 2012, 9:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                               CLERK
case.                                                              of the supreme court,
                                                                   court of appeals and
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

WILLIAM S. FRANKEL, IV                          GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt,                   Attorney General of Indiana
 Wilkinson & Drummy, LLP
Terre Haute, Indiana                            KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JONATHON P. GRIGSBY,                            )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 84A01-1205-CR-238
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
        Cause Nos. 84D03-0903-FB-825, 84D03-0904-FD-1142, 84D03-0904-FD-1143



                                     December 26, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Jonathon Grigsby appeals the reinstatement of his previously suspended sentence

following the revocation of his probation. Grigsby raises one issue which we revise and

restate as whether the trial court abused its discretion in ordering that Grigsby serve his

previously suspended sentence. We affirm.

       The relevant facts follow. On September 28, 2010, Grigsby pled guilty to robbery

as a class C felony under Cause No. 84D03-0903-FB-825 (“Cause No. 825”), domestic

battery as a class D felony under Cause No. 84D03-0904-FD-1142 (“Cause No. 1142”),

and theft as a class D felony under Cause No. 84D03-0904-FD-1143 (Cause No. 1143”).

On November 15, 2010, the court held a sentencing hearing and sentenced Grigsby to a

total of eleven years on his convictions with seven of the eleven years suspended to

probation.1 Grigsby was required to submit to random drug screens as a condition of his

probation.

       On May 23, 2011, the State filed a notice of probation violation in all three cause

numbers, and each notice was amended on October 27, 2011. On November 1, 2011 the

court held a probation revocation hearing addressing all three cause numbers, and

Grigsby admitted that he violated the terms of his probation when he failed a drug screen.

On April 26, 2012, the court held a sentencing hearing and ordered that Grigsby serve the

balance of the suspended portions of his sentence under each cause number as executed

time in the Indiana Department of Correction (“DOC”). The court ordered that Grigsby

serve the sentences consecutively for an aggregate sentence of seven years and observed

       1
          Specifically, Grigsby was sentenced to five years with three years executed and two years
suspended to probation under Cause No. 825 and three years with 180 days executed and two and one-
half years suspended to probation under both Cause No. 1142 and Cause No. 1143. The court ordered
that Grigsby serve the sentences consecutively.
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that he had accumulated credit time totaling 660 days which it applied to the sentence

under Cause No. 825.

       The issue is whether the court abused its discretion in ordering that Grigsby serve

his previously suspended sentence. Grigsby argues that evidence was presented that he

has a history of psychological and substance abuse issues, that he recognizes his

mistakes, and that he is taking medications in order to function as “a much clearer, clear-

headed individual.”     Appellant’s Brief at 4 (quoting Transcript Volume III at 26).

Grigsby argues that “[r]ather than ordering [him] to execute his suspended sentences, the

trial court had the option of continuing [him] on probation, with or without modifying or

enlarging the conditions, or it could have extended [his] probation for an additional year.”

Id. (citing Ind. Code § 35-38-2-3(g)). The State argues that Grigsby conceded that he

violated probation and that he received a favorable plea agreement but relapsed and was

arrested again.

       At the time of Grigsby’s violation and the probation revocation hearing, Ind. Code

§ 35-38-2-3(g) set forth a trial court’s sentencing options if the trial court finds a

probation violation and provided:

       If the court finds that the person has violated a condition at any time before
       termination of the period, the court may impose one (1) or more of the
       following sanctions:

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

              (2)     Extend the person’s probationary period for not more
                      than one (1) year beyond the original probationary
                      period.


                                             3
               (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(g) (subsequently amended by Pub. L. No. 147-2012 (eff. July 1,

2012) (amending Ind. Code § 35-38-2-3 and setting forth the contents of subsection (g)

under subsection (h)). This provision permits judges to sentence offenders using any one

of or any combination of the enumerated options. Prewitt v. State, 878 N.E.2d 184, 187

(Ind. 2007).

       The Indiana Supreme Court has held that a trial court’s sentencing decisions for

probation violations are reviewable using the abuse of discretion standard. Id. at 188.

The Court explained that “[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” and that “[i]f this discretion were not afforded to trial courts

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

to order probation to future defendants.” Id. An abuse of discretion occurs where the

decision is clearly against the logic and effect of the facts and circumstances. Id. (citation

omitted). As long as the proper procedures have been followed in conducting a probation

revocation hearing, “the trial court may order execution of a suspended sentence upon a

finding of a violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d

209, 212 (Ind. Ct. App. 1999).

       The record reveals that Grigsby admitted at the revocation hearing that he violated

his probation by failing a drug screen. At the sentencing hearing, the court observed in

sentencing him to serve the balance of his suspended sentence that he was “a regular

occurrence” before the court and that he had been arrested forty-six times since reaching
                                           4
adulthood. Transcript Volume III at 35. The court stated that Grigsby had “been in here

numerous times in the nine (9) years since I’ve been in here, and you’ve had good

attorneys, attorneys who’ve tried to help you . . . help yourself once you’ve been in

trouble.” Id. at 35-36. The court noted that Grigsby had received a “very favorable plea

agreement” which permitted him to serve his sentence on work release, but he could not

succeed. Id. at 36. The court also observed that in addition to his failed drug screen

Grigsby had received “a new B Felony dealing charge.” Id. The court noted that

“allowing [Grigsby] to go back into the community hasn’t worked in the last four (4)

years,” and that although it believed he had mental health and substance abuse issues,

“the criminal justice system can only do so much to help [him] to try to address those”

and if he is “unwilling to, then we really have . . . very little option.” Id. at 35-36.

       Given the circumstances as set forth above and in the record, we cannot say that

the court abused its discretion in ordering Grigsby to serve his previously suspended

sentences totaling seven years. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App.

2008) (holding that the trial court did not abuse its discretion in reinstating the

probationer’s entire previously suspended sentence), trans. denied.

       For the foregoing reasons, we affirm the trial court’s revocation of Grigsby’s

probation and order that he serve his previously suspended sentence in the DOC.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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