Shaun S. Nesbit v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 03 2017, 8:50 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shaun S. Nesbit, July 3, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1611-CR-2704 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause No. 84D01-1108-FB-2493

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017 Page 1 of 4 [1] Shaun S. Nesbit appeals following the revocation of his probation. On appeal,

Nesbit argues that the trial court abused its discretion in ordering him to serve

the remainder of his previously suspended sentence in the Department of

Correction (DOC). [2] We affirm.

Facts & Procedural History [3] In 2012, Nesbit was convicted pursuant to a guilty plea of class B felony dealing

in methamphetamine. He was sentenced to fourteen years, with six years

executed and eight years suspended to probation. Several notices of probation

violation were filed against Nesbit over the ensuing years. The one relevant to

this appeal alleged that Nesbit had violated probation by committing multiple

new offenses, testing positive for methamphetamines, amphetamines, and

marijuana, and failing to report to probation. Nesbit admitted to violating

probation in exchange for the dismissal of the new charges, and he requested

that he be allowed to continue on probation on the condition that he enter a

long-term drug treatment program. The trial court rejected Nesbit’s request and

ordered him to serve the entirety of his previously suspended sentence in the

DOC. Nesbit now appeals.

Discussion & Decision [4] On appeal, Nesbit argues that the trial court abused its discretion by ordering

him to serve the remainder of his previously suspended sentence in the DOC.

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We review a trial court’s sentencing decision in a probation revocation

proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148

(Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the

logic and effect of the facts and circumstances before the court. Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[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. “If the court finds the

defendant has violated a condition of his probation at any time before the

termination of the probationary period, and the petition to revoke is filed within

the probationary period, then the court may order execution of the sentence

that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

2007); see also Ind. Code § 35-38-2-3(h). [5] Nesbit argues that in light of his ongoing struggles with substance abuse, he

should have been allowed to enroll in a long-term substance abuse treatment

program rather than ordered to serve his sentence in the DOC. 1 We are

unconvinced. We note, as did the trial court, that Nesbit has received extensive

treatment for his substance abuse, but nevertheless continues to abuse drugs and

commit new crimes. Nesbit has been shown considerable lenience and given

multiple opportunities to address his addiction, all to no avail. In the words of

1 Nesbit’s reliance on Ind. Appellate Rule 7(B) is misplaced. See Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (explaining that the sanctions imposed for a probation violation are not subject to review for inappropriateness pursuant to Ind. App. R. 7(B)).

Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017 Page 3 of 4

the trial court, Nesbit has “earned [his] way back to the DOC, plain and

simple.” Transcript Vol. 3 at 26. [6] Judgment affirmed. [7] Kirsch, J. and Mathias, J., concur.

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