MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                         Jun 21 2017, 8:47 am
the defense of res judicata, collateral
                                                                         CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan K. Bolt                                            Curtis T. Hill, Jr.
Gibson Law Office                                        Attorney General of Indiana
Lafayette, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Greenwell,                                         June 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1612-CR-2941
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-7-CF-89



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017         Page 1 of 10
[1]   David Greenwell appeals the trial court’s order revoking his probation. He

      raises two issues which we consolidate and restate as whether the trial court

      abused its discretion in ordering him to serve eight years of his previously

      suspended sentence and two years of probation. We affirm.


                                      Facts and Procedural History

[2]   On July 10, 2000, the State charged Greenwell with four counts of child

      molesting as class B felonies. On August 31, 2001, Greenwell and the State

      entered a plea agreement providing that he would plead guilty to one amended

      count of child molesting as a class A felony and any remaining counts would be

      dismissed. The plea agreement provided that any executed portion of the

      sentence would not exceed forty years. On October 29, 2001, the court

      accepted the plea agreement and sentenced Greenwell to thirty years with

      twenty years executed at the Department of Correction followed by ten years

      on supervised probation “to include the recommendations as set forth on page

      five of the pre-sentence report.” Appellant’s Appendix Volume 2 at 26.


[3]   In June 2016, the State filed a petition to revoke probation alleging that

      Greenwell had unapproved contact with a child under the age of sixteen years.

      On September 15, 2016, the State filed a second petition to revoke probation

      alleging that Greenwell left Indiana without prior approval from his probation

      officer and also engaged in a sexual relationship with a person who has a child

      under the age of sixteen years without prior approval from the court, probation,

      or a treatment provider.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 2 of 10
[4]   On December 9, 2016, the court held a hearing. Greenwell admitted that he

      violated his probation by having contact with a minor child without obtaining

      approval required by the terms of his probation, by leaving Indiana and

      traveling to places such as Texas, Missouri, Oklahoma, West Virginia, North

      Carolina, and Pennsylvania without permission, and by having a sexual

      relationship with a woman who had a child under sixteen years of age without

      prior approval from the court, his probation officer, or a treatment provider.

      During questioning by his counsel, Greenwell indicated that the woman with

      whom he was having a sexual relationship was pregnant with his child. The

      court found that Greenwell violated his probation.


[5]   Greenwell then testified that he had some difficulty in obtaining jobs given that

      he was a registered sex offender and that he invested over $60,000 in a franchise

      called Hillbilly Hauling which involved hauling manufactured campers from

      point A to point B and back to point A. He testified that he ultimately sought

      approval to leave the State but that was denied. When asked by his counsel

      what led him to not comply with that order, Greenwell answered: “I just felt

      financial – just a bad financial choice and financial stress, just unbelievable

      stress.” Transcript Volume II at 16. He testified that he went straight to the

      delivery spot with his wife and straight back to his house. When asked about

      his sexual relationship with the woman who had a child under sixteen years

      old, Greenwell stated: “It was you know absolutely spontaneous and just a

      friend of the family and a common interest in music and um . . . you know . . .




      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 3 of 10
      spontaneous . . . our affections obviously went further than you know natural

      friendship, so.” Id. at 17.


[6]   The court stated that Greenwell may have the ability to follow the rules but his

      desire was truly lacking. The following exchange occurred:


              THE COURT: Okay. You’ve been married for eight years and
              since your paramour is pregnant it suggests that within the last
              nine months you’ve been having sex with another woman and
              yet your wife is still supportive, and she was supportive of you
              when she rode with you out of state, so I’m not sure what her
              role in all of this might be. How long have you been out of the
              DOC?


              [Greenwell]: Seven years sir.


              THE COURT: So you were married while – you and your wife
              were married while you were in the Department of Corrections?


              [Greenwell]: Yes sir.


              THE COURT: And you knew her how long before that?


              [Greenwell]: A couple of years.


              THE COURT: So you started as pen pals?


              [Greenwell]: Well when I was – came down with the cancer she
              was part of the prayer group. And we found out that we had a
              mutual friend, family friend.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 4 of 10
              THE COURT: This is while you were in the Department of
              Corrections?


              [Greenwell]: Yes sir.


      Id. at 33.


[7]   The court stated:

              Well I’m going to tell you one thing, I’m happy for you that
              medically it was a good – that good things have happened for
              you, but I can’t trust you. You know I don’t think you do have
              the desire. The nature of these – the nature of these violations is
              such that it says that at least, interestingly it says, you left the
              state without prior approval, the states including but not limited
              to states of Texas, Missouri, Oklahoma, West Virginia, Florida
              and North Carolina and Pennsylvania; however, my thought is
              you probably in order to get one of those you had to go through
              at least Illinois, Kentucky or Ohio, right? You’ve been all over
              the country. I don’t know what you’ve been doing all over the
              country; I don’t know what you’ve been doing all over the
              country with a woman who accepts the fact that you’ve had sex
              with another woman.


      Id. at 34. The court revoked Greenwell’s probation and ordered him to serve

      eight years in the Department of Correction and two years suspended to

      probation.


                                                   Discussion

[8]   The issue is whether the trial court abused its discretion in ordering that

      Greenwell serve eight years of his previously suspended sentence. Greenwell

      argues that the trial court abused its discretion by ordering eight years of his
      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 5 of 10
       suspended sentence revoked without considering mitigating factors including

       that he admitted the violations of probation, he expressed remorse throughout

       the hearing, he had successfully served a large portion of his suspended

       sentence on probation with no violations, incarceration would be a hardship on

       his family, and he was in financial distress. He also argues that the trial court

       abused its discretion by considering improper factors. Specifically, he cites

       Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), and points to the court’s

       comments regarding his wife and his extramarital affair and asserts that the

       court sent a personal philosophical message.


[9]    The State argues that the trial court did not abuse its discretion in imposing

       eight years of Greenwell’s ten-year suspended sentence and points to his

       multiple violations. With respect to the court’s comment that it did not know

       what Greenwell had been doing all over the country with his wife who accepted

       the fact that he had sex with another woman, the State asserts it was a reflection

       of the court’s concerns about what he was doing in his cross-country jaunts.

       The fact that his wife was with him was not sufficient to quell any concerns that

       she would stop him from committing any additional sexual misconduct against

       children. The State contends that the court was stating that Greenwell’s wife

       was not the supervision that someone with Greenwell’s background required,

       rather than a reflection of its moral beliefs.


[10]   Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial

       court finds a probation violation and provides:



       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 6 of 10
               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke
               is filed within the probationary 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) Order execution of all or part of the sentence that was
                        suspended at the time of initial sentencing.


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

       probation violations are reviewable using the abuse of discretion standard.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). 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.


[12]   While a probationer who admits the allegations against him must still be given

       an opportunity to offer mitigating evidence suggesting that the violation does

       not warrant revocation, Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), we


       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 7 of 10
       have previously observed that “trial courts are not required to balance

       ‘aggravating or mitigating circumstances when imposing sentence in a

       probation revocation proceeding.’” Treece v. State, 10 N.E.3d 52, 59-60 (Ind. Ct.

       App. 2014) (quoting Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993),

       overruled in part by Patterson v. State, 659 N.E.2d 220, 223 n.2 (Ind. Ct. App.

       1995) (holding that in a probation revocation proceeding, probationer’s mental

       health should be considered)), trans. denied. This stems from the fact that a

       probation revocation hearing does not involve the imposition of a sentence, but

       is a proceeding to consider the execution of a sentence already imposed. See

       Mitchell, 619 N.E.2d at 963-964. 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).


[13]   In Puckett, this Court observed that the trial court’s statements of reasons for

       entirely revoking a defendant’s probation were problematic. 956 N.E.2d at

       1186-1187. Specifically, we observed that the trial court plainly and repeatedly

       expressed its displeasure with the defendant’s original plea agreement and the

       trial court indicated that he should have been convicted of at least a class B

       felony. Id. at 1187. We also observed that the court relied upon probation

       violation allegations that the State had dismissed, and engaged in extended

       discussion regarding its personal beliefs as to the importance of the sex offender

       registry, including noting its personal use of the registry. Id. at 1188. We held

       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 8 of 10
       that “within the context of original sentencing, it is improper for a trial court to

       impose a harsh sentence on the basis of the trial court’s desire to send a

       personal philosophical message about the general severity of an offense, rather

       than focusing upon facts that are peculiar to the particular defendant and

       offense.” Id. We concluded that the trial court’s statements of reasons

       considering improper factors constituted an abuse of discretion. Id. We find

       Puckett distinguishable as there is no suggestion that the trial judge may have

       been trying to make up for an initial sentence he considered inadequate, relied

       upon dismissed probation violation allegations, or discussed his personal

       beliefs.


[14]   The record reveals that Greenwell, who had pled guilty to child molesting as a

       class A felony, violated his probation numerous times. He admitted that he

       violated his probation by having contact with a minor child without obtaining

       required approval, left Indiana and traveled to Texas, Missouri, Oklahoma,

       West Virginia, North Carolina, and Pennsylvania without permission, and had

       a sexual relationship with a woman who had a child under sixteen years of age

       without prior approval from the court, his probation officer, or a treatment

       provider. The trial court commented that “[t]he nature of these violations and

       the number of the violations and the continued violations are very disturbing.”

       Transcript Volume II at 35. Given the circumstances as set forth above and in

       the record, we cannot say that the court abused its discretion in ordering

       Greenwell to serve eight years of his previously suspended ten-year sentence.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 9 of 10
                                                   Conclusion

[15]   For the foregoing reasons, we affirm the trial court’s order revoking Greenwell’s

       probation and ordering that he serve eight years of his previously suspended

       sentence in the Department of Correction and two years of probation.


[16]   Affirmed.


       May, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017   Page 10 of 10
