D.J. Johns 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 Jun 26 2019, 10:09 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D. J. Johns, June 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-304 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1608-F3-13

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-304| June 26, 2019 Page 1 of 6

STATEMENT OF THE CASE [1] Appellant-Defendant, D.J. Johns (Johns), appeals the trial court’s Order,

revoking his probation and imposing the balance of his previously suspended

sentence. [2] We affirm.

ISSUE [3] Johns raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion by revoking the balance of his previously suspended

sentence following his admission to having violated the conditions of his

probation.

FACTS AND PROCEDURAL HISTORY [4] On August 5, 2016, the State filed an Information, charging Johns with

conspiracy to manufacture methamphetamine, a Level 3 felony. On May 5,

2017, Johns entered into a plea agreement with the State in which he agreed to

plead guilty to conspiracy to manufacture methamphetamine, as a Level 4

felony. He was sentenced to eleven years, with two years executed at the

Indiana Department of Correction (DOC) and nine years suspended to

probation. On January 25, 2018, Johns was released from incarceration and

commenced his term of probation. [5] On August 7, 2018, the State filed a petition to revoke Johns’ probation,

alleging that he had violated his probation by committing a Level 6 felony

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forgery and a Class A misdemeanor theft. On September 7, 2018, the State

filed an amended petition for probation revocation to include an allegation that

Johns had committed a Level 6 felony auto theft and a Class B misdemeanor

unauthorized entry of a motor vehicle. [6] On January 9, 2019, Johns admitted to the allegations contained in the State’s

amended petition. Finding Johns in violation of the terms of his probation, the

trial court revoked the remaining nine years of his previously suspended

sentence and sentenced him to the DOC. [7] Johns now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [8] Johns contends that the trial court abused its discretion by revoking his

probation and imposing the balance of his previously suspended sentence.

Pointing to his lack of opportunity for drug rehabilitation and his young age,

Johns requests this court for leniency and to refer him to Purposeful

Incarceration. [9] “Probation is a matter of grace left to the trial court’s discretion, not a right to

which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188

(Ind. 2007). It is within the discretion of the trial court to determine probation

conditions and to revoke probation if these conditions are violated. Id. We

review the appeal from a trial court’s probation determination and sanction for

an abuse of discretion. See id. An abuse of discretion occurs when the decision

is clearly against the logic and effect of the facts and circumstances. Smith v. Court of Appeals of Indiana | Memorandum Decision 19A-CR-304| June 26, 2019 Page 3 of 6

State, 963 N.E.2d 1110, 1112 (Ind. 2012). A probation hearing is civil in nature

and the State need only prove the alleged violation by a preponderance of the

evidence. Id. [10] Probation revocation is a two-step process. First, the trial court must make a

factual determination that a violation of a condition has actually occurred.

Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a

violation is proven, then the trial court must determine if the violation warrants

revocation of the probation. Id. However, where, as here, a probationer admits

to the violations, the trial court can proceed immediately to the second step of

the inquiry and determine whether the violation warrants revocation. Id. In

determining whether the violation warrants revocation, the probationer must be

given an opportunity to present evidence that explains and mitigates his

violation. See id. Once a violation has been found and revocation of probation

is warranted, the trial court may impose one 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 year beyond the original probationary period; or (3) order execution of all

or part of the sentence that was suspended at the time of initial sentencing. See

Ind. Code § 35-38-2-3(h). [11] Johns conceded that he violated his probation by committing two new felonies.

He forged a check to “get money and use it to get drugs.” (Transcript p. 15).

He also admitted to a Level 6 felony auto theft because “in Marion County, you

can get up to five hundred dollars [] per car. Which is more money and in turn

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go get high.” (Tr. p. 16). Despite these admissions, Johns now maintains that

he is deserving of a less severe sanction and requests the opportunity for

Purposeful Incarceration “to give him the skills by which he might face his drug

addiction and earn a modification with the tools learned in the program.”

(Appellant’s Br. p. 10). He suggests that “[l]ittle benefit could inure to [him] by

placing him in the [DOC] for nine years without an avenue through which to

address his addiction.” (Appellant’s Br. p. 10). [12] Johns received a great deal of leniency in his original sentence. Despite being

charged with a Level 3 felony, Johns reached a plea agreement for a Level 4

felony. During sentencing, the trial court considered the mitigating

circumstance that he was only twenty-years old and imposed an eleven-year

sentence of which only two years were ordered executed. During the probation

revocation hearing, Johns testified that during his six months on probation, he

spent at least one hundred dollars daily on controlled substances, varying from

heroin, methamphetamines, ecstasy, to alcohol and Xanax. Despite the fact

that he did not participate in rehabilitation services while incarcerated, he

conceded that he never asked probation for help to conquer his drug addictions

and did not get “value out of probation.” (Tr. p. 25). Accordingly, Johns never

lacked the opportunity for rehabilitation; rather, he failed to take advantage of

the opportunity when it was available to him. In light of the evidence before us,

we cannot conclude that the trial court abused its discretion in revoking Johns’

probation.

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CONCLUSION [13] Based on the foregoing, we conclude that the trial court properly revoked the

balance of Johns’ previously suspended sentence. [14] Affirmed. [15] Bailey, J. and Pyle, J. concur

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