Jerry Lee Jones 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                                         Oct 21 2020, 9:54 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerry Lee Jones,                                         October 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-705
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff,                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1810-F5-1373



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020            Page 1 of 9
                               Case Summary and Issues
[1]   Jerry Jones appeals the trial court’s partial revocation of his previously

      suspended sentence upon finding he had violated his probation, raising two

      issues for our review: whether the State proved he had violated a condition of

      his probation and whether the trial court abused its discretion in the sanction it

      imposed upon finding a violation. Concluding the State proved the violation by

      sufficient evidence and the trial court did not abuse its discretion in the sanction

      it imposed for the violation, we affirm.



                            Facts and Procedural History
[2]   In August 2019, Jones pleaded guilty to fraud on a financial institution, a Level

      5 felony, and in October, was sentenced to three years, with 240 days to be

      executed and 855 days suspended to probation, with 360 of those probationary

      days subject to home detention. Jones began his probation on November 18,

      2019. Conditions of his probation and community corrections placement

      included that he “not commit any criminal act or violate any traffic law[,]” not

      “possess or consume alcohol[,]” and that he “maintain the monitoring

      equipment in good condition.” Appellant’s Appendix, Volume 2 at 52-54.


[3]   On November 26, 2019, the probation department filed a petition for revocation

      of probation, alleging Jones violated the conditions of his probation by:


              failing a [portable breathalyzer] test for .35% [blood alcohol
              level]. Mr. Jones allowed his ankle monitor to shut down on 4
              different days. Mr. Jones no showed his appointment with

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 2 of 9
        Home Detention on 11/25/19. He was found by Case Manager
        Barkdull and Case Manager Adkins wa[l]king down Lincoln
        Street. On 11/26/19, at 12:43AM, a low battery alert was
        triggered for Mr. Jones. At 3:17AM, [the GPS manufacturer]
        was unable to connect to Mr. Jones[’] ankle monitor due to
        insufficient charging. When this Probation Officer was given the
        Incident Report, Mr. Jones’ ankle monitor was not showing a
        location.

Id. at 55.

A supplemental petition for revocation was filed on December 3,

2019 alleging Jones had violated the conditions of his probation by being

charged with public nudity, a Class C misdemeanor. The trial court held a

hearing on February 20, 2020, and after hearing testimony from Jones’

probation officer, his community corrections supervisor, the police officer who

arrested Jones for public nudity, and Jones himself, the trial court found:


        Jones did, in fact, commit the offense of public nudity. Based on
        that finding to be in violation of conditions of probation by
        committing a new offense. Also find he committed a technical
        violation of drinking alcohol while on probation. Also find the
        technical violation of failing to maintain the charge in his
        monitoring unit . . . .


        Based on those things, find Mr. Jones to be in violation of the
        conditions of his probation.


Transcript, Volume 2 at 29. The trial court noted that “the most basic

condition of probation is not to commit a new criminal offense, . . . [a]nd so

that is also in my view the most serious violation[.]”

Id. at 30.

The trial court

ordered 720 days of Jones’ previously suspended sentence revoked, to be served


Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 3 of 9
      as an executed sentence in the Indiana Department of Correction (“DOC”),

      with probation to be terminated as unsuccessful. Jones now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[4]   Probation revocation is a two-step process: first, the trial court determines

      whether a violation has occurred and second, the court determines whether the

      violation warrants revocation. Overstreet v. State, 

136 N.E.3d 260

, 263 (Ind. Ct.

      App. 2019), trans. denied. Upon revoking probation, the trial court may impose

      one of several sanctions provided by statute. Ind. Code § 35-38-2-3(h). We

      review a trial court’s revocation and sanction decisions for an abuse of

      discretion. 

Overstreet, 136 N.E.3d at 263

. An abuse of discretion occurs when

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

      before the court.

Id. II.

Proof of Violation
[5]   On appeal of a probation revocation decision, we consider only the evidence

      most favorable to the judgment without reweighing that evidence or judging the

      credibility of the witnesses. Murdock v. State, 

10 N.E.3d 1265

, 1267 (Ind. 2014).

      If substantial evidence of probative value supports the trial court’s decision that

      a defendant has violated any terms of probation, we will affirm its decision to

      revoke probation.

Id. Court of Appeals

of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 4 of 9
[6]   Jones contends the State failed to prove he had violated the condition of his

      probation that he not commit any criminal act. “When a probationer is

      accused of committing a criminal offense, an arrest alone does not warrant the

      revocation of probation.” Jackson v. State, 

6 N.E.3d 1040

, 1042 (Ind. Ct. App.

      2014) (quotation omitted). Likewise, the mere filing of a criminal charge

      against a defendant does not warrant the revocation of probation. Martin v.

      State, 

813 N.E.2d 388

, 391 (Ind. Ct. App. 2004). Instead, the State must prove

      the elements of the criminal offense by a preponderance of the evidence. Heaton

      v. State, 

984 N.E.2d 614

, 617 (Ind. 2013); Ind. Code § 35-38-2-3(f).

      “Preponderance of the evidence” “simply means the greater weight of the

      evidence.” Kishpaugh v. Odegard, 

17 N.E.3d 363

, 373 (Ind. Ct. App. 2014)

      (quotation omitted).


[7]   The notice of probation revocation alleged Jones had committed the new

      criminal offense of public nudity. A person commits Class C misdemeanor

      public nudity by “knowingly or intentionally appear[ing] in a public place in a

      state of nudity[.]” Ind. Code § 35-45-4-1.5(b). “[N]udity” means “the showing

      of the human male . . . genitals, pubic area, or buttocks with less than a fully

      opaque covering[.]” Ind. Code § 35-45-4-1(d). Jones concedes the State proved

      that he was in a public place and that his genitals were exposed. Appellant’s

      Brief at 10. Jones argues only that the State failed to prove he knowingly or

      intentionally exposed himself because he explained at the revocation hearing

      that he was “having trouble keeping his multi-layered, baggy, thin clothing

      from falling on the windy day [and] that [his] mental health impaired his


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 5 of 9
      thinking.”

Id. He contends the

exposure was “inadvertent.” Tr., Vol. 2 at 28.

      This argument, however, asks that we reweigh the evidence in his favor, which

      we cannot do. 

Murdock, 10 N.E.3d at 1267

.


[8]   Lieutenant Joe Radcliff testified that he had encountered Jones in the morning

      on November 27, 2019, and Jones “had his pants up without having any issues,

      same weather conditions.” Tr., Vol. 2 at 21. Within an hour of this encounter,

      Lieutenant Radcliff received a dispatch report “of a male matching a

      description of Mr. Jones who I spoke with earlier at a gas station, same clothing

      description with his genitals exposed to passersby, motorists, citizens in the area

      of Main Street.”

Id. at 16.

When Lieutenant Radcliff located Jones, he

      observed Jones’ exposed penis. Lieutenant Radcliff testified that Jones was

      facing the roadway so passersby could see his exposed genitals, but when Jones

      saw him, he started to walk away and began to pull his pants up. The

      encounter was captured on Lieutenant Radcliff’s body camera and shown to the

      trial court. A person acts “knowingly” if, when he engages in the conduct, “he

      is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

      Lieutenant Radcliff’s testimony—which the trial court specifically noted that it

      found credible, see Tr., Vol. 2 at 28—that Jones was on a public street exposing

      his penis and that he turned away and began pulling up his pants when he saw

      Lieutenant Radcliff approach is sufficient to prove by a preponderance of the

      evidence that Jones knowingly appeared in a public place in a state of nudity.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 6 of 9
                                                     III. Sanction
[9]    Jones also contends the sanction the trial court imposed was an abuse of

       discretion because it was the “result of technical violation[s] and in light of

       Jones’ limitations due to homelessness and mental illness.” Appellant’s Br. at

       11. The trial court found the commission of a new criminal offense to be the

       most serious violation, but also found that the State had proved he consumed

       alcohol1 and failed to maintain his electronic monitoring device in working

       condition.


[10]   Jones’ argument is premised on his success in his first argument – that there was

       insufficient evidence that he committed a new offense. See

id. at 13-14

(arguing

       that “[i]n light of the State’s failure to prove by a preponderance of the evidence

       that Jones intended to show his genitals,” the “purely technical nature” of his

       remaining violations do not warrant a sanction “in excess of eighty percent

       (80%) of his suspended time”). It is true, as Jones argues, that we have

       previously found an abuse of discretion when a trial court revokes the entirety

       of a suspended sentence for technical violations. See, e.g., Johnson v. State, 

62 N.E.3d 1224

, 1231 (Ind. Ct. App. 2016) (holding it was an abuse of discretion

       to order the defendant to serve the entirety of his suspended sentence in the

       DOC given, among other things, the nature of his violations). However, Jones

       did not commit mere technical violations. As we determined above, the State




       1
           Jones admitted to this violation. See Tr., Vol. 2 at 27.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 7 of 9
       did prove by a preponderance of the evidence that Jones had committed a new

       criminal offense, and therefore, his violations were not merely technical

       violations and his proportionality argument is inapposite.


[11]   Probation is a matter of grace and a conditional liberty that is a favor, not a

       right. Cox v. State, 

706 N.E.2d 547

, 549 (Ind. 1999). “Once a trial court has

       exercised its grace by ordering probation rather than incarceration, the judge

       should have considerable leeway in deciding how to proceed.” Prewitt v. State,

       

878 N.E.2d 184

, 188 (Ind. 2007). Indiana Code section 35-38-2-3(h) offers the

       trial court the following options when it finds a defendant has violated the terms

       of his probation: (1) “[c]ontinue the person on probation, with or without

       modifying or enlarging the conditions[,]” (2) “[e]xtend the person’s

       probationary period for not more than one (1) year beyond the original

       probationary period[,]” or (3) “[o]rder execution of all or part of the sentence

       that was suspended at the time of initial sentencing.” Thus, a trial court has

       great latitude to fashion the terms of a probation violation sanction.


[12]   Here, less than two weeks after being placed on probation, Jones had consumed

       alcohol, his electronic monitoring unit shut down at least four times, he missed

       an appointment with his supervisor, and he committed a new offense by

       exposing himself on the street. The trial court was well within its discretion to

       determine that Jones had abused the grace previously offered to him and to




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020   Page 8 of 9
       revoke a substantial portion of his previously suspended sentence.2 See Terpstra

       v. State, 

138 N.E.3d 278

, 289-90 (Ind. Ct. App. 2019) (affirming trial court’s

       imposition of entire previously suspended sentence because defendant’s

       commission of a new offense less than a year after being placed on probation

       was not a mere technical violation of the terms of probation), trans. denied.



                                                   Conclusion
[13]   The State met its burden of proving by a preponderance of the evidence that

       Jones had violated his probation and the terms of his community corrections

       placement by committing a new criminal offense and the trial court therefore

       did not abuse its discretion in revoking his probation or in imposing a sanction

       for the violation. Accordingly, the judgment of the trial court is affirmed.


[14]   Affirmed.


       Crone, J., and Brown, J., concur.




       2
         We do acknowledge that the fact Jones was homeless and living in a shelter probably contributed to his
       failure to keep his electronic monitoring device charged and made home detention a dubious choice in the
       first place. However, the trial court did not revoke Jones’ probation and impose a sanction primarily because
       of that violation. Moreover, his mental health issues may have contributed to his behavior. Nonetheless, the
       State did prove a violation and it is possible that the DOC, a significant provider of mental health services, is
       the best place for Jones to be.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020                      Page 9 of 9
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