Jody A. Bailey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Apr 30 2015, 9:24 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 Chris M. Teagle Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jody A. Bailey, April 30, 2015

Appellant-Defendant, Court of Appeals Case No. 05A02-1410-CR-722 v. Appeal from the Blackford Circuit Court

State of Indiana, The Honorable Dean A. Young, Judge Appellee-Plaintiff. Cause No. 05C01-1011-FB-415

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015 Page 1 of 8 [1] Jody A. Bailey appeals the trial court’s order revoking his probation and

ordering that he serve the previously suspended portion of his sentence in the

Department of Correction (the “DOC”). We affirm.

Facts and Procedural History [2] In May 2011, Bailey pled guilty pursuant to a plea agreement to possession of

methamphetamine as a class C felony, and in June 2011, the court accepted his

plea and sentenced him to eight years with five years suspended. The court

ordered that, after service of two years executed, he could petition the court to

be released on home detention. In December 2012, he filed a petition for

alternative placement, and in March 2012, following a hearing, the court

granted his petition and ordered that he be placed on home detention through

the Blackford County Community Corrections Program for the remaining

portion of his executed sentence, and then immediately report to the Blackford

County Probation Department for the remaining five years of his suspended

sentence. On October 7, 2013, the court held a hearing at which Bailey

appeared and the rules of probation were read and reviewed with him in open

court. [3] On June 30, 2014, a Blackford County probation officer filed a Petition to

Revoke, Modify, or Continue Suspended Sentence Placement which alleged

that: on or about March 14, 2014, Bailey committed the pending offenses of

aiding, inducing, or causing criminal mischief and assisting a criminal as class

D felonies; on or about March 27, 2014, he was screened and the sample

yielded a positive result for methamphetamine; and that he owed certain court Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015 Page 2 of 8

costs, state substance abuse fees, attorney fees, and probation user fees. On

August 11, 2014, the court held a hearing on the petition at which Bailey

admitted that one of the rules of his probation was that he not possess or

consume any controlled substances or prescription medications unless he had a

valid script from a doctor, that in March of 2014 he submitted to a drug screen

and it was positive for methamphetamine, and that he violated his probation by

using methamphetamine. [4] On September 8, 2014, the court held a dispositional hearing at which Bailey

requested that he be placed on house arrest at the home of his grandmother.

The community corrections director testified that she had some reservations

about accepting Bailey on home detention. The director testified that “with

[Bailey’s] history, [she] would have some concern,” that Bailey’s “grandmother

seemed uncertain about how long she wanted him there” and “[t]hey want him

to find his own place as quick as possible,” that “[i]t is kind of out in the middle

of nowhere,” that “[h]e does not have transportation anywhere [] to look for a

job or to find a job,” that she had “not been given any information to verify a

job that an uncle or cousin might get him,” and that she “just [has] a concern,

given his history, in placing him in the home of a woman in her late 80’s [sic].”

Transcript at 24. The director testified that Bailey had several curfew violations

when he was on day reporting. Bailey’s counsel asked the court to consider

placing Bailey on house arrest, and noted that he had been released for nine

months, that the only substantive violation was the one dirty drug screen, and

that he had been incarcerated for two and one-half months due to the violation.

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The court indicated it would issue an order and include the credit-time

calculation. [5] In an order signed September 9, 2014, and file-stamped September 10, 2014, the

court found:

That [Bailey] is not a good candidate for probation, or additional commitment to the Blackford County Community Corrections Program in that he has been in and out of prison since he was 15 years of age; is now 41 years of age; has not availed himself of numerous opportunities throughout his juvenile and adult life to rehabilitate himself, including counseling, drug rehabilitation, and periods of commitment to local security facilities and the Indiana Department of Correction.

Appellant’s Appendix at 58. The court revoked his community corrections

placement and probation, and ordered that he serve the remaining 1,785 days of

his sentence in the DOC less any good time credit to be determined by the

DOC.

Discussion [6] The issue is whether the trial court abused its discretion in ordering that Bailey

serve his previously suspended sentence in the DOC. Bailey does not challenge

the finding that he violated his probation; rather, he argues that the sanction

imposed was not warranted and should be revised. He specifically asserts that

his sentence should be revised in accordance with Appellate Rule 7 and that this

court should remand with instructions to revise his sentence to time served with

the remainder to be served on either day reporting and/or supervised probation.

The State’s position is that the court did not abuse its discretion in revoking

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Bailey’s probation and that Appellate Rule 7(B) is not an available remedy in

the context of probation revocations. The State argues that Bailey admitted

committing precisely the same offense for which he was convicted in the first

place and for which he was serving probation, that he had not shown much

regard for the opportunity and grace he was given, and that “[i]nstead, he

picked up right where he left off . . . .” Appellee’s Brief at 6. The State also

notes that the trial court and probation officer identified concerns which make

Bailey a bad candidate for home detention. [7] We first observe that a trial court’s action in a post-sentence probation violation

proceeding is not a criminal sentence as contemplated by Ind. Appellate Rule

7(B). Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008) (citing Jones v.

State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s action in a post-

sentence probation violation proceeding is not a criminal sentence as

contemplated by the rule. The review and revise remedy of App. R. 7(B) is not

available.”)), trans. denied. Rather than the independent review afforded

sentences under Ind. Appellate Rule 7(B), a trial court’s sentencing decisions for

probation violations are reviewable using the abuse of discretion standard. Id. [8] Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if it finds a

probation violation and provides:

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:

Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-722 | April 30, 2015 Page 5 of 8

(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.

[9] 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. (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). [10] The record reveals that the trial court originally sentenced Bailey to eight years

with three years executed and five years suspended, the court later permitted

him to serve a portion of his executed sentence on community corrections, the

rules of probation were read and reviewed with him in open court on October 7,

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2013, in March 2014 he submitted to a drug screen and tested positive for

methamphetamine, and that in August 2014 he admitted that he violated his

probation by using methamphetamine. [11] At the dispositional hearing, the court heard testimony from the community

corrections director that Bailey’s grandmother wanted him to find his own place

as soon as possible, that he does not have transportation to look for a job, that

she had not been given any information to verify any job that his uncle or

cousin might have been able to help him obtain, and that she had a concern

given Bailey’s history in placing him “in the home of a woman in her late 80’s

[sic].” Transcript at 24. In its order revoking probation, the court found that he

is not a good candidate for probation or additional commitment to community

corrections in that he has been in and out of prison since he was fifteen years of

age, is now forty-one years of age, and has not availed himself of numerous

opportunities throughout his juvenile and adult life to rehabilitate himself,

through counseling, drug rehabilitation, or incarceration. [12] Given the circumstances, including that Bailey used methamphetamine within

six months after the rules of probation were read and reviewed with him in

October 2013, and that he was serving probation in connection with his

conviction for possession of methamphetamine, we cannot say that the court

abused its discretion in ordering him to serve his previously suspended

sentence. See Milliner, 890 N.E.2d at 793 (holding that the trial court did not

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abuse its discretion in reinstating the probationer’s previously suspended

sentence).

Conclusion [13] For the foregoing reasons, we affirm the trial court’s order that Bailey serve his

previously suspended sentence. [14] Affirmed.

Crone, J., and Pyle, J., concur.

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