David Greenwell v. State of Indiana (mem. dec.)

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 . . .

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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.

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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:

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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

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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

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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.

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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.

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