Jaedyn L. Clayburn v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2018, 6:41 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Laura A. Raiman Curtis T. Hill, Jr. R. Patrick Magrath Attorney General of Indiana Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jaedyn L. Clayburn, April 12, 2018 Appellant-Defendant, Court of Appeals Case No. 03A01-1710-CR-2500 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1703-F6-1707

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018 Page 1 of 9

Statement of the Case [1] Jaedyn L. Clayburn appeals the extension of her probationary term following

her conviction for operating a vehicle while intoxicated, as a Class A

misdemeanor, and her sentence following her conviction for theft, as a Class A

misdemeanor. Clayburn raises two issues for our review, which we restate as

follows:

1. Whether the trial court abused its discretion when, as a penalty for Clayburn’s violation of probation, the court extended her probationary term.

2. Whether her sentence for theft is inappropriate in light of the nature of the offense and her character.

[2] We affirm.

Facts and Procedural History [3] On February 16, 2016, Gethin Thomas, Clayburn’s stepfather, filed a police

report in which he indicated that a ring worth $5,000 and a watch valued at

approximately $3,500 had been stolen from his residence on February 15.

Thomas stated that he suspected Clayburn had stolen the items. [4] Detective Chad Swank with the Bartholomew County Sheriff’s Office

investigated the case. After several unsuccessful attempts by Detective Swank

to contact Clayburn, on September 16, Clayburn went to the Bartholomew

County Sheriff’s Office and spoke with Detective Swank. Clayburn admitted

that she had stolen two televisions, a ring, and a watch. She also admitted that

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she had stolen two diamond bracelets. As a result, the State charged her with

one count of theft, as a Level 6 felony, in Cause Number 03D01-1703-F6-1707

(“F6-1707”). [5] On September 26, the State charged Clayburn with one count of operating a

vehicle while intoxicated, as a Class A misdemeanor, and one count of

operating a vehicle with a schedule I or II controlled substance or its metabolite

in the body, as a Class C misdemeanor, in cause number 03D01-1609-CM-5260

(“CM-5260”). In that cause, Clayburn pleaded guilty to Count 1, operating a

vehicle while intoxicated, as a Class A misdemeanor, and the trial court

sentenced her to a one-year term suspended to probation. As a condition of

probation, Clayburn was prohibited from using drugs or alcohol. The court

also ordered Clayburn to obtain a substance abuse evaluation and to follow the

recommendations of the evaluation. Thereafter, Clayburn pleaded guilty to

theft, as a Class A misdemeanor, in F6-1707, and the trial court took her guilty

plea under advisement. [6] The next day, the State filed a petition to revoke Clayburn’s probation in CM-

5260. In its petition, the State alleged that Clayburn had violated her probation

because she had failed to comply with the recommended substance abuse

treatment and because she had tested positive for marijuana.1

1 The State also alleged that she had failed to pay costs and fees, but the State later withdrew that violation.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018 Page 3 of 9 [7] On September 26, the trial court held a sentencing hearing in F6-1707 and a

hearing on the petition to revoke Clayburn’s probation in CM-5260. The trial

court accepted Clayburn’s guilty plea in F6-1707 and sentenced her to one year

suspended to probation. Also during the hearing, Clayburn admitted that she

had violated her probation as alleged in CM-5260. As a result, the trial court

extended the term of Clayburn’s probation in CM-5260 by six months and

ordered that term to be served consecutive to her sentence in F6-1707. This

appeal ensued.

Discussion and Decision Issue One: Probation Extension in CM-5620 [8] Clayburn first contends that the trial court abused its discretion when it

extended the term of her probation in CM-5260 by six months. “Probation is a

matter of grace left to trial court discretion, not a right to which a criminal

defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). The

conditions for probation and whether to revoke that probation when those

conditions are violated are left to the discretion of the trial court. Id.

If the trial court determines that a probationer has violated a condition of probation . . . the court may impose one (1) of more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

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(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.

Ind. Code § 35-38-2-3(h) (2018). “We review a court’s sentencing decisions for

probation violations for an abuse of discretion.” Knecht v. State, 85 N.E.3d 829,

840 (Ind. Ct. App. 2017). “An abuse of discretion occurs where the decision is

clearly against the logic and effect of the facts and circumstances.” Id. [9] Here, Clayburn asserts that the trial court abused its discretion when it extended

the term of her probation because the probation violations were “relatively

minor” and because the extension of her probation represents an undue

hardship due to the “extraordinary complications of her physical and mental

health.” Appellant’s Br. at 10. But the record reveals that the trial court had a

sufficient basis for extending her probation. Clayburn admitted that she had

violated her probation when she tested positive for marijuana and when she

failed to comply with the recommended substance abuse treatment. As a result,

the trial court extended her probation by six months, which was within its

discretion pursuant to Indiana Code Section 35-38-2-3(h)(2). Given the

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circumstances, we cannot say that the trial court abused its discretion when it

extended the term of Clayburn’s probation in CM-5260 by six months.2

Issue Two: Appropriateness of Sentence in F6-1707 [10] Clayburn next contends that her sentence in F6-1707 is inappropriate in light of

the nature of the offense and her character. Indiana Appellate Rule 7(B)

provides that “[t]he Court may revise a sentence authorized by statute if, after

due consideration of the trial court’s decision, the Court finds that the sentence

is inappropriate in light of the nature of the offense and the character of the

offender.” The Indiana Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original). [11] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

2 While Clayburn contends that the extension of her probation is an undue hardship because of her health, we agree with the State that Clayburn has not demonstrated “how an extra six months of probation will affect her physical or mental health, other than positively.” Appellee’s Br. at 11.

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regard a sentence as inappropriate at the end of the day turns on “our sense of

the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Id. at 1224.

The question is not whether another sentence is more appropriate, but rather

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

“When reviewing the appropriateness of a sentence under Rule 7(B), we may

consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was

suspended.” Prater v. State, 59 N.E.3d 314, 318 (Ind. Ct. App. 2016). [12] Here, Clayburn pleaded guilty to theft, as a Class A misdemeanor. A person

convicted of a Class A misdemeanor may be imprisoned for up to one year.

I.C. § 35-50-3-2. However, a court may suspend any part of that sentence. I.C.

§ 35-50-3-1(a). If a court suspends the sentence for a Class A misdemeanor in

whole or in part, the court may place the person on probation for a period of

not more than one year. I.C. § 35-50-3-1(b). Accordingly, the trial court

sentenced Clayburn to one year, all suspended to probation, in F6-1707. [13] Clayburn asserts that her sentence is inappropriate in light of the nature of the

offense because “Clayburn’s step-father and mother did not seek restitution.”

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Appellant’s Br. at 12. She further asserts that her offense “had a minimal

impact on the victims of the crime[.]” Id. at 13. But Clayburn stole a watch

valued at $3,500 and a ring valued at approximately $5,000. Further, Clayburn

stole the items from her mother and stepfather. And, during the hearing, she

admitted that she had stolen the items so that she could sell them and buy

drugs. In light of the fact that Clayburn had stolen over $8,000 worth of jewelry

from her own family so that she could get money to buy drugs, we cannot say

that her sentence is inappropriate in light of the nature of the offense. [14] Clayburn further asserts that her sentence is inappropriate in light of her

character. She contends that she had a relatively minor criminal history, that

she had obtained her GED, that she had maintained a job, and that she has

“significant physical and mental health conditions.” Id. at 12. But Clayburn

was only twenty-one years old on the date of the sentencing hearing. And, at

that time, she had already been convicted of driving while intoxicated and the

instant theft charge. Additionally, Clayburn had violated her probation in CM-

5260 when she failed a drug test and failed comply with the recommended

substance abuse treatment. Further, the fact that she stole jewelry from her

family in order to buy drugs reflects poorly on her character. Based on her

criminal history, her probation violation, and the fact that she stole from her

family so that she could buy drugs, we cannot say that Clayburn’s sentence of

one year suspended to probation is inappropriate in light of her character.

Accordingly, we affirm her sentence in F6-7107. [15] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018 Page 8 of 9 Robb, J., and Altice, J., concur. Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2500 | April 12, 2018 Page 9 of 9