      MEMORANDUM DECISION                                                  Feb 03 2016, 8:24 am

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



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jeremy McCool,                                           February 3, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1506-CR-711
              v.                                               Appeal from the Dearborn Superior
                                                               Court.
                                                               The Honorable Jonathan N. Cleary,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 15D01-0802-FA-1




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Jeremy McCool appeals the trial court’s imposition of the remainder of his

      previously suspended sentence following the revocation of his probation. We

      affirm.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016      Page 1 of 7
                                                     Issue
[2]   McCool presents one issue for our review, which we restate as: whether the

      trial court abused its discretion by ordering McCool to serve the remainder of

      his previously suspended sentence.


                                   Facts and Procedural History
                                                                                               1
[3]   On February 27, 2008, McCool was charged with Class B felony rape and
                                          2
      Class A felony burglary. On January 7, 2009, pursuant to a plea agreement,

      McCool pleaded guilty to rape, and the State dismissed the burglary charge.

      The trial court subsequently sentenced McCool to twenty years with sixteen

      years suspended to probation. After serving the executed portion of his

      sentence, McCool was released to probation on or about February 23, 2010.


[4]   Thereafter, on August 10, 2010, the State filed a request for probation violation

      hearing alleging that McCool had violated his probation by committing

      additional criminal offenses, specifically harassment, a Class B misdemeanor,

      and intimidation of a law enforcement officer, a Class D felony. McCool

      admitted the violation, and the trial court ordered him to serve two years of his

      suspended sentence.




      1
          Ind. Code § 35-42-4-1 (1998).
      2
          Ind. Code § 35-43-2-1 (1999).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016       Page 2 of 7
[5]   On June 18, 2012, the State filed a second request for probation violation

      hearing. The State alleged that McCool had violated his probation by

      committing yet another criminal offense: driving while suspended, a Class A

      misdemeanor. McCool admitted the violation and was ordered to serve 180

      days of his suspended sentence.


[6]   The State filed a third request for probation violation hearing on September 6,

      2013, alleging that McCool had violated his probation again by consuming an

      illegal or controlled substance without a valid prescription. The State based its

      allegation on McCool’s August 28, 2013 drug screen in which he tested positive

      for Suboxone. McCool admitted the violation, and the trial court ordered him

      to serve two more years of his suspended sentence.


[7]   Finally, on November 17, 2014, the State filed its fourth request for probation

      violation hearing alleging that McCool had violated his probation by possessing

      firearms and ammunition. McCool denied the allegations, and a fact-finding

      hearing was held on June 4, 2015. At the fact-finding hearing, both Kristy

      Alig, McCool’s probation officer, and Major Prarat of the Dearborn County

      Sheriff’s Department, testified on behalf of the State. They testified that on

      November 13, 2014, they went to McCool’s residence for a probation home

      visit. While there, they found a rifle in a kitchen closet, and a shotgun, rifle,

      and ammunition in McCool’s bedroom where the guns were “in [McCool’s]

      bed under a cover.” Tr. p. 22. McCool told Alig and Prarat the bedroom was

      his, and they found his mail in the room. Based on this incident, McCool was

      arrested and charged with unlawful possession of a firearm by a serious violent

      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016   Page 3 of 7
                                          3
      felon, a Level 4 felony. The charging information was admitted as an exhibit

      at the fact-finding hearing. Further evidence at the fact-finding hearing showed

      that during phone calls to his wife from jail, McCool admitted several times he

      was aware of the presence of the guns in the house, and, in one conversation,

      he said that if his fingerprints were found on the guns, the two would need to

      come up with a good story to explain their presence. In addition, he coached

      his wife on their story that she had the guns out to clean them because she was

      going hunting. McCool had previously been found guilty by a jury of the

      firearm possession offense, and the State introduced McCool’s judgment of

      conviction as an exhibit at the fact-finding hearing.


[8]   Based on this evidence, the trial court found McCool violated his probation,

      sentenced him to the remaining eleven and a half years of his previously

      suspended sentence, and terminated his probation. In doing so, the court

      considered McCool’s three previous probation violations in this cause and his

      conviction of unlawful possession of a firearm by a serious violent felon, as well

      as his general criminal history.


                                          Discussion and Decision
[9]   McCool contends the trial court abused its discretion when, upon revoking his

      probation, it ordered him to serve the remaining eleven and a half years of his

      previously suspended sentence. Specifically, he argues that his violation is one




      3
          Ind. Code § 35-47-4-5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016   Page 4 of 7
       of “inadvertence, not evil behavior” and that he has already faced enough
                                                                            4
       punishment for the offense. Appellant’s Br. p. 5.


[10]   At the time of McCool’s violation, Indiana Code section 35-38-2-3(h) (2012)

       provided that if the court finds a violation of a condition of probation, it may:

       (1) continue the person on probation, with or without modifying the conditions,

       (2) extend the person’s probationary period for not more than one year; and/or

       (3) order execution of all or part of the sentence that was suspended at the time

       of initial sentencing. A trial court’s sentencing decisions for probation

       violations are reviewed for an abuse of discretion. Wilkerson v. State, 918

       N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse of discretion occurs when the

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

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


[11]   As a benefit of the plea agreement McCool entered into in the rape case

       underlying this probation violation, he avoided prosecution on a felony

       burglary charge. McCool served his sentence for the rape, and then began to

       serve the sixteen year suspended portion of his sentence. Within six months of

       beginning his sixteen year probationary period, McCool had violated his




       4
         McCool also argues that the nature of the offense and his character call for something less than an eleven
       and a half year sentence. However, the appellate evaluation of whether a trial court’s sanctions are
       inappropriate in light of the nature of the offense and the character of the offender is not the correct standard
       to apply when reviewing a trial court’s actions in a post-sentence probation violation proceeding. Because a
       sentence imposed upon a violation of probation is not a criminal sentence as contemplated by Appellate Rule
       7(B), the review and revise remedy of Appellate Rule 7(B) is not available in an appeal of such a sentence.
       Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016               Page 5 of 7
       probation. This first violation was followed by three additional violations, all

       within approximately four years and one of which resulted in another felony

       conviction for McCool. Moreover, the felony conviction for possession of

       firearms was issued by a jury of McCool’s peers who were sworn to determine

       his guilt beyond a reasonable doubt, a much greater burden of proof than the

       preponderance of the evidence standard of probation violations. See Kincaid v.

       State, 736 N.E.2d 1257, 1259 (Ind. Ct. App. 2000) (probation revocation

       hearing is in nature of civil proceeding so violation need only be proven by

       preponderance of evidence); see also Ind. Code § 35-38-2-3(f). In addition,

       McCool’s conversations with his wife of his awareness of the presence of the

       guns and his devising of stories with regard to why the guns were there and why

       they contained his fingerprints belie his claim that this was an “inadvertent

       act.”


[12]   In arguing that he has been punished enough for this offense, McCool refers to

       his sentence of twelve years for the firearms conviction itself and to his

       sentences totaling one and a half years for the revocation of his probation in

       two other matters due to the firearms conviction. Probation is a criminal

       sanction wherein a convicted defendant specifically agrees to accept conditions

       upon his behavior in lieu of imprisonment. Bratcher v. State, 999 N.E.2d 864,

       873 (Ind. Ct. App. 2013), trans. denied. These restrictions are designed to ensure

       that the probation serves as a period of genuine rehabilitation and that the

       public is not harmed by a probationer living within the community. Jones v.

       State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). McCool, of his own accord,


       Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016   Page 6 of 7
       committed numerous offenses and, when facing punishment for his illegal

       actions, accepted probation and agreed to limitations on his behavior in lieu of

       jail time. However, he has repeatedly demonstrated his unwillingness to

       comply with the conditions of his probation and to conform his behavior in

       order to lead a law-abiding life, even when under court order to do so. Further,

       he failed to take advantage of the opportunity to change his behavior when the

       court afforded him leniency in his initial transgressions. Moreover, considering

       the number and serious nature of McCool’s violations within the first four years

       of his sixteen-year probation period, we find nothing to suggest that he will

       comply with his probation conditions in the future.


                                                Conclusion
[13]   For the reasons stated, we conclude that the trial court properly exercised its

       discretion in ordering McCool to serve the remaining eleven and a half years of

       his previously suspended sentence upon the revocation of his probation in this

       matter.


[14]   Affirmed.


[15]   Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1506-CR-711 | February 3, 2016   Page 7 of 7
