MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Jul 24 2015, 10:56 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
James D. Crum                                             Gregory F. Zoeller
Coots, Henke & Wheeler, P.C.                              Attorney General of Indiana
Carmel, Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony Levell Gregory, II,                               July 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A02-1502-CR-114
        v.                                                Appeal from the Hamilton Circuit
                                                          Court
State of Indiana,
                                                          The Honorable Paul A. Felix, Judge
Appellee-Plaintiff.
                                                          Cause No. 29C01-0810-FB-97




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015       Page 1 of 6
                                             Case Summary
[1]   Anthony Levell Gregory, II (“Gregory”) was convicted of two counts of

      Burglary, as Class B felonies.1 After serving the executed portion of his

      sentence, Gregory was placed on probation. His probation was subsequently

      revoked. Gregory now appeals the trial court’s order revoking his probation

      and ordering him to serve the remainder of his previously suspended sentence

      as executed time, with one year to be served in the Indiana Department of

      Correction and two years to be served with Hamilton County Community

      Corrections.


[2]   We affirm.



                                                        Issue
[3]   Gregory presents a single issue for our review, which we restate as whether a

      probation revocation sanction may be reviewed under Appellate Rule 7(B).



                              Facts and Procedural History
[4]   On October 29, 2008, Gregory was arrested and charged with two counts of

      Burglary, as Class B felonies; Theft, as a Class D felony; 2 and Attempted Theft,




      1
       Ind. Code § 35-43-2-1. In light of the wide-reaching amendments our General Assembly has made to
      Indiana’s criminal statutes, we apply the substantive provisions of our laws effective at the time of Gregory’s
      proceedings.
      2
          I.C. § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015                 Page 2 of 6
      as a Class D felony.3 On April 2, 2009, based upon a plea agreement, Gregory

      entered a plea of guilty as to the two counts of Burglary. The State dismissed

      the other two charges.


[5]   On July 22, 2009, the trial court accepted the plea agreement and sentenced

      Gregory to ten years imprisonment for each of the two counts of Burglary, with

      the sentences to be served concurrent with one another. The trial court ordered

      that Gregory serve six years of his term as executed time, with four years of his

      prison term in the Department of Correction, one and one-half years in the

      Hamilton County Community Corrections’ Work Release Program, and six

      months on Home Detention. Four years of Gregory’s term were suspended to

      probation, with two years of that time to be served as supervised probation.


[6]   On July 6, 2012, Gregory violated the terms of his Community Corrections

      placement. On November 1, 2012, the trial court ordered Gregory to serve the

      remainder of the executed portion of his sentence in the Indiana Department of

      Correction.


[7]   On October 24, 2013, Gregory was released by the Indiana Department of

      Correction and was placed under the supervision of the Hamilton County

      Probation Department.




      3
          I.C. §§ 35-41-5-1 & 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015   Page 3 of 6
[8]    On October 28, 2014, the Probation Department filed an information alleging

       that Gregory had violated multiple terms of his probation. Specifically, the

       information alleged that Gregory had on September 9, 2014 tested positive for

       use of marijuana and alprazolam (a scheduled drug); had been dishonest with a

       probation officer with respect to his use of an illegal drug; and had, on October

       7, 2014 in Fulton County, committed Driving While Suspended, as a Class A

       misdemeanor.


[9]    After several continuances, on February 19, 2015, a fact-finding hearing on the

       information was conducted. During the hearing, Gregory admitted to having

       violated the terms of probation. The trial court accordingly found Gregory to

       have violated probation, and ordered Gregory to serve the three remaining

       years of his sentence as executed time, with one year to be served in the Indiana

       Department of Correction and two years to be spent under the oversight of

       Hamilton County Community Corrections.


[10]   This appeal ensued.



                                  Discussion and Decision
[11]   On appeal, Gregory argues that the trial court abused its discretion when it

       revoked his probation and ordered him to serve the remainder of his sentence as

       executed time in the Department of Correction and community corrections.

       Specifically, Gregory argues that while revocation was within the trial court’s

       statutory discretion, we should review the revocation of probation for


       Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015   Page 4 of 6
       inappropriateness, as if it were an original sentence under the Indiana

       Constitution and our Appellate Rules.


[12]   The Indiana Supreme Court has stated:

               Probation is a matter of grace left to trial court discretion, not a right to
               which a criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952
               (Ind. Ct. App. 2005). The trial court determines the conditions of
               probation and may revoke probation if the conditions are violated.
               Ind.Code Ann. § 35–38–2–3 (West 2007); Goonen v. State, 705 N.E.2d
               209 (Ind. Ct. App. 1999). 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. If 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. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse of
               discretion standard. See Sanders, 825 N.E.2d at 956. An abuse of
               discretion occurs where the decision is clearly against the logic and
               effect of the facts and circumstances. Guillen v. State, 829 N.E.2d 142
               (Ind. Ct. App. 2005).
       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). When faced with a probation

       violation, the trial court may, in its discretion, continue the probationary

       period, extend the probationary period for up to one year, or order that some or

       all of the probationer’s suspended sentence be served as executed time. I.C. §

       35-38-2-3(h).


[13]   In Prewitt, and again in Jones v. State, 885 N.E.2d 1286 (Ind. 2008), the Indiana

       Supreme Court held that application of the inappropriateness standard under

       Appellate Rule 7(B) was “not the correct standard to apply when reviewing a

       sentence imposed for a probation violation.” Prewitt, 878 N.E.2d at 188; Jones,

       885 N.E.2d at 1290. We are not free to determine otherwise today. We
       Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015   Page 5 of 6
       accordingly decline Gregory’s request that we reexamine the Indiana Supreme

       Court’s decision on this matter and apply the inappropriateness standard to his

       probation revocation sanction.


[14]   Further, we find no abuse of discretion on the trial court’s part in its decision to

       revoke Gregory’s probation in its entirety. Gregory admitted to having

       committed all the alleged violations of the terms of his probation, including

       consumption of marijuana and driving with a suspended license. Prior to being

       on probation, in 2012 Gregory had violated the provisions of his Community

       Corrections placement. Despite the Hamilton County Probation Department’s

       recommendation of ninety days imprisonment with a return to probation,

       Gregory admitted his probation violation and acknowledged that the trial court

       would exercise its discretion in determining a sanction. Thus, we cannot

       conclude that the trial court’s sanction was outside its discretion.


[15]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015   Page 6 of 6
