Jenneil Jackson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 8:33 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 K. Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jenneil Jackson, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 15A01-1509-CR-1386 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1208-FB-43

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 15A01-1509-CR-1386 | April 26, 2016 Page 1 of 5

Statement of the Case [1] Jenneil Jackson (“Jackson”) appeals the trial court’s order that she serve 730

days of her previously suspended sentence for Class B felony conspiracy to

commit burglary after she violated her probation for that conviction.1 On

appeal, Jackson argues that the trial court abused its discretion in ordering her

to serve that amount of her suspended sentence because it was excessive in light

of her desire to reform. In light of Jackson’s criminal history and the fact that

this was her second violation of her probation for her conspiracy to commit

burglary conviction, we conclude that the trial court did not abuse its discretion. [2] We affirm.

Issue Whether the trial court abused its discretion when it ordered Jackson to serve 730 days of her previously suspended sentence in the Indiana Department of Correction (“DOC”).

Facts [3] On August 28, 2013, Jackson pled guilty to Class B felony conspiracy to

commit burglary. The trial court sentenced her to 2,920 days, with 1,460 of

those days suspended to probation. One of the conditions of her probation was

that she “[n]ot consume any alcohol, illegal drugs or the synthetic form of any

illegal drug, or controlled substance, without a valid prescription and submit to

1 IND. CODE §§ 35-41-5-2 and 35-43-2-1(1)(B)(i).

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testing as required by Probation, Community Corrections, or a Law

Enforcement Officer.” (App. 26). [4] On December 1, 2014, Jackson’s probation officer filed a petition to revoke

Jackson’s probation, alleging that on November 24, 2014, Jackson had violated

the terms of her probation by testing positive for marijuana. On May 7, 2015,

Jackson pled guilty to the violation, and the trial court ordered her to serve

forty-four (44) days of her suspended sentence. [5] Subsequently, on August 10, 2015, Jackson’s probation officer filed a second

petition to revoke her probation. In the petition, the officer alleged that on or

about July 30, 2015, Jackson had tested positive for methamphetamine and

amphetamine. On August 20, 2015, at her initial hearing, Jackson admitted to

violation. As a result, the trial court revoked her probation a second time and

ordered her to serve 730 days of her previously suspended sentence. As a basis

for its order, the trial court cited Jackson’s criminal history and the fact that it

was her second probation violation in this cause. Jackson now appeals.

Decision [6] On appeal, Jackson argues that the trial court abused its discretion in ordering

her to serve 730 days of her previously suspended sentence in the DOC. She

acknowledges that she violated her probation twice, but she argues that

“[r]ather than using her mistake as an excuse to binge and fall completely off

the wagon, [she] used her relapse as an impetus to try even harder to maintain

sobriety.” (Jackson’s Br. 8). Specifically, she “went to drug classes and is

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working hard to stay sober.” (Jackson’s Br. 8). In light of this desire to change,

Jackson argues that the trial court abused its discretion in ordering her to serve

half of her suspended sentence. [7] First, we note that “‘[p]robation is a matter of grace and a conditional liberty

[that] is a favor, not a right.’” Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.

App. 2015) (quoting Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012)).

INDIANA CODE § 35-38-2-3(h) sets forth a trial court’s options once the trial

court has found a probation violation. It 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:

(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.

I.C. § 35-38-2-3(h). Our supreme court has held that a trial court’s sanction

decisions for probation violations are reviewable using the abuse of discretion

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

“[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.” Id. We will find that a trial court has abused its discretion when its

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

before it. Id. [8] Even though Jackson asserts she has been attending drug classes and attempting

to stay sober, we cannot conclude that the trial court abused its discretion when

it ordered her to serve 730 days of her previously suspended sentence. As the

trial court noted, this was Jackson’s second probation violation under this

cause, and the trial court had already granted her leniency when it ordered her

to serve only forty-four days of her suspended sentence and allowed her to then

continue on probation after her first probation violation. In addition, Jackson

has a notable criminal history that includes several drug and alcohol related

offenses. These offenses included, among others, three convictions of Class C

misdemeanor illegal consumption of an alcoholic beverage; one conviction of

Class B misdemeanor disorderly conduct; and one conviction for Class B

misdemeanor public intoxication that endangers the person’s life. In addition,

Jackson was convicted of Class A misdemeanor conversion in 2007 and

violated her probation four times in that cause. In light of the leniency the trial

court afforded Jackson in the past and her criminal history, we conclude that

the trial court did not abuse its discretion when it ordered her to serve 730 days

of her suspended sentence. [9] Affirmed.

Kirsch, J., and Riley, J., concur.

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