MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 29 2016, 9:03 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jayson S. Roberts, January 29, 2016
Appellant-Defendant, Court of Appeals Case No.
63A05-1507-CR-1019
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1408-F3-361
Pyle, Judge.
Statement of the Case
[1] Appellant/defendant, Jayson S. Roberts (“Roberts”), appeals the trial court’s
revocation of his probation and order that he serve the remainder of his
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suspended sentence for Level 3 felony child molesting 1 in the Indiana
Department of Correction (“DOC”). He argues that: (1) the trial court abused
its discretion in revoking his probation because, even though he violated the
conditions of his probation and work release, there were extenuating
circumstances to his violations; and (2) the trial court abused its discretion in
ordering him to serve the remainder of his suspended sentence in the DOC
because he had taken steps to remedy the violations prior to the revocation
hearing. Because we find that Roberts violated the conditions of his probation
and because he had previously been granted leniency through less restrictive
placements and had continued to violate the terms of those placements, we
affirm the trial court’s decision in both respects.
We affirm.
Issues
1. Whether the trial court abused its discretion when it revoked
Roberts’ probation.
2. Whether the trial court abused its discretion when it ordered
Roberts to serve his entire suspended sentence in the DOC.
Facts
[2] On September 16, 2014, Roberts pled guilty to Level 3 felony child molesting.
Subsequently, on January 14, 2015, the trial court held a sentencing hearing
1
IND. CODE § 35-42-4-3(a)(1).
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and sentenced Roberts to twelve (12) years, with six (6) years executed in
community corrections on work release and the balance suspended to
probation. At the sentencing hearing, the trial court noted that it had not yet
approved the terms of probation because the terms had been updated with
special conditions recommended for adult sex offenders. The trial court asked
Roberts’ counsel whether he had gone over those terms with Roberts, and both
Roberts and his counsel responded that he had. As a result, the trial court and
Roberts signed the special conditions of probation, and Roberts initialed each
individual condition.
[3] Among other provisions, Roberts’ term number 26 of probation provided:
You shall not access the internet or any other on-line service
through use of a computer, cell phone, iPod, Xbox, Blackberry,
personal digital assistant (PDA), pagers[,] Palm Pilots, televisions
or any other electronic device at any location (including your
place of employment) without prior approval of your probation
officer. This includes any Internet service provider, bulletin
board system, e-mail system or any other public or private
computer network. . . .
(State’s Ex. 1). In addition, Roberts was required to “remain employed” and to
pay weekly fees of a minimum of $14.00 per day.
[4] On February 27, 2015, Roberts’ work release coordinator filed a notice of
community corrections violation alleging that Roberts had been terminated
from his employment with Perdue Farms in Washington, Indiana. The notice
stated that Roberts had “walked off the production line before the work was
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done” even though he had been warned that doing so would be considered
voluntary termination. (App. 59). The notice also alleged that Roberts had
violated term number 26 of his probation by accessing the internet—to use
Facebook—and that he owed work release fees in the amount $536.25.
[5] On March 2, 2015, the State moved to revoke Roberts’ probation. The State
also alleged that Roberts had violated term number 26 of his probation and that
he had violated the terms and conditions of the work release program by failing
to maintain employment and pay work release fees.
[6] On April 23, 2015, the trial court held a hearing on the motion to revoke
Roberts’ probation. At the hearing, Chris Yon (“Yon”), the Chief Probation
Officer in Pike County, testified. He said that he was friends with Roberts’
father on Facebook and had seen one day that people were posting condolences
on his Facebook page because his father had just died. Yon had become
suspicious that Roberts was still using the internet because, in response to those
condolences, Roberts’ father had written: “[P]lease don’t post this. My, my
son doesn’t know just yet. He doesn’t want to find out through the internet that
his grandfather [] passed away.” (Tr. 19). Yon testified that he had then found
Roberts’ public Facebook profile, which documented that Roberts had changed
his profile picture on January 25 and February 14, 2015. Roberts had also
responded, on January 25, 2015, to a friend’s comment and had written, “I’m
good[.] I have a deit [sic] its call [sic] workrelease and work for four more
years.” (State’s Ex. 1) (grammar in original).
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[7] Scott Brown (“Brown”), the Director of the Wabash Valley Regional
Community Corrections, testified that Roberts had lost his job at Perdue
because Perdue had wanted him to work overtime, and he had left work in spite
of that fact. Brown said that Roberts had been unemployed for about a month
before he had found new employment. He also confirmed that Roberts was
behind on paying his work release fees. According to Brown, Roberts “rarely”
paid his rent. (Tr. 37).
[8] Finally, Roberts testified. He admitted that he had used the internet and
Facebook to talk to his relatives and “a couple of good friends” while he was on
probation. (Tr. 50). He said that he had forgotten he was not allowed to use
the internet and that when he had signed that probation condition in court, he
had been “in a hurry” because he was “happy” and “just ready to get out of
jail.” (Tr. 49). He also said that he might have “skipped pas[t]” a couple of the
conditions, and he alluded to the fact that he had a learning disability and
“AHD.” (Tr. 49).
[9] With respect to his employment, Roberts offered the following explanation for
losing his job at Perdue:
I told . . . my head team leader at the time, that I needed a
replacement. That I could get, I could possibly get sick on line.
And I was already feeling lightheaded. And they would not
listen to me. And I told ‘em [sic] several times. And eventually I
just . . . got annoyed after about forty-five (45) minutes. Actually
it was probably longer than that. To be honest. But I just got
ignored. And I took off. And I told them. I’m like, I’m sick of
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it. I need to get something in my stomach now before I do get
sick.
(Tr. 42). With respect to his arrearage in fees, Roberts testified that he had
planned to use part of his work checks to pay work release, but work release
had not let him leave to get money orders for the payments.
[10] At the end of the hearing, the trial court concluded that Roberts had violated
the terms of his placement in community corrections by failing to maintain
employment and pay his fees and that Roberts had violated the terms of his
probation by accessing the internet. Subsequently, the trial court held another
hearing on May 21, 2015. At that hearing, the trial court revoked Roberts’
probation and ordered that he serve the balance of his previously suspended
sentence in the DOC. In support of this decision, the court explained:
The reason the Court ordered a Pre[s]entence Investigation
update in this matter was so that the Court could make an
informed decision as to how best to handle this case. And what
we have before the Court is a pattern of violations of less
restrictive placements. Community Corrections has been tried
on more than one occasion. The local jail has been tried. And
unfortunately, Mr. Roberts continues to violate the rules of
community corrections. Even with a filing after the defendant
was found to have violated his placement in community
corrections in this matter. So the Court is left with no alternative
here but to order that the defendant serve the balance of his
sentence in the Indiana Department of Corrections.
(Tr. 72-73). Roberts now appeals.
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Decision
[11] On appeal, Roberts argues that the trial court abused its discretion by revoking
his probation and by ordering him to serve his previously suspended sentence in
the DOC. We will address each argument in turn.
1. Revocation of Probation
[12] First, Roberts argues that the trial court abused its discretion by revoking his
probation. He asserts that, even though the trial court found he had violated
the conditions of his probation and work release on three occasions, there were
extenuating factors that led to those violations. Specifically, he notes that when
he lost his job at Perdue, he was fired for refusing to work overtime even though
he had already completed his shift and was not feeling well. He also points out
that he gained new employment after he was fired and was employed at the
time of the probation revocation hearing. As for his internet usage, Roberts
reasserts that he did not remember that he was not allowed to use the internet.
He also argues that the purpose of prohibiting him from using the internet was
to protect children, and he contends that the trial court should have been lenient
because there was no evidence he used the internet to contact or harm children.
Finally, Roberts notes that his failure to pay his fees was caused by economic
hardship and that his failure could not, according to law, serve as the sole basis
for the revocation of his probation.
[13] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct.
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App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial
court determines the conditions of probation and may revoke probation if the
conditions are violated. Id. We review a trial court’s probation revocation for
an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App.
2005), trans. denied. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances before the court or
when the trial court misinterprets the law. Jackson, 6 N.E.3d at 1042. In
determining whether a trial court has abused its discretion, we look only to the
evidence which supports the judgment and any reasonable inferences flowing
therefrom. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (quoting
Richardson v. State, 890 N.E.2d 766, 768 (Ind. Ct. App. 2001)), trans. denied. “In
a sense, all probation requires ‘strict compliance’ because probation is a matter
of grace, and once the trial court extends this grace and sets its terms and
conditions, the probationer is expected to comply with them strictly.” Cain v.
State, 30 N.E.3d 728, 731-32 (Ind. Ct. App. 2015) (quoting Woods v. State, 892
N.E.2d 637, 641 (Ind. 2008)), trans. denied. As such, proof of a single violation
of the conditions of probation is sufficient to support the decision to revoke
probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), reh’g
denied, trans. denied. Further, our standard of review for a community
corrections violation mirrors that for a probation violation. See Holmes v. State,
923 N.E.2d 479, 482-83 (Ind. Ct. App. 2010).
[14] Roberts admits that he violated the condition of his probation prohibiting him
from accessing the internet. As just stated, proof of a single violation of the
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conditions of probation is sufficient to support the decision to revoke probation.
Id. Roberts asserts that there were mitigating circumstances justifying his
violation of probation, but those circumstances do not change the fact that he
violated his probation and that he was required to comply with the terms of his
probation “strictly.” See Cain, 30 N.E.3d at 732 (quoting Woods, 892 N.E.2d at
641). Moreover, although Roberts claims he did not remember that he was not
allowed to use the internet, the evidence introduced at trial indicated that he
was informed of the prohibition. He initialed that term and signed the
document as a whole, acknowledging that he had read it. He also told the trial
court that he had gone over the terms with his lawyer. In light of these factors,
we conclude that the trial court did not abuse its discretion in revoking Roberts’
probation, and we need not address Roberts’ other violations. See Bussberg, 827
N.E.2d at 44.
2. Suspended Sentence
[15] Next, Roberts argues that, even if the trial court did properly revoke his
probation, the court abused its discretion in ordering him to serve his entire
previously suspended sentence in the DOC. He claims that although he
violated the terms of his probation, he had taken steps to cure the violations by
the time of the probation revocation hearing. Specifically, he had stopped using
the internet, he had found a new job, and he was beginning to pay his arrearage
in fees.
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[16] Under the Indiana Code, once a trial court has found that a person has violated
a condition of probation within the probationary period, the trial court shall:
(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.
I.C. § 35-38-2-3(h).
[17] In support of his argument that the trial court should have considered that he
was working to remedy his violations, Roberts cites Ripps v. State, 968 N.E.2d
323, 328 (Ind. Ct. App. 2012), where we held that the trial court had abused its
discretion in revoking Ripps’ probation and ordering his entire sentence
executed. Ripps had been convicted of child molesting as a Class C felony and
then had violated the terms of his probation by residing within 1,000 feet of a
youth program center and failing to informing all people living at his residence
of his sexual conviction. Id. at 324. Based on this violation, the trial court had
revoked Ripps’ probation and ordered the balance of his suspended sentence to
be executed. Id. at 325. On appeal, we held that the trial court had abused its
discretion because:
Ripps was sixty-nine years old and suffering from serious health
issues, including terminal cancer; he was attempting to adhere to
his probation conditions, as evidenced by his going to the
sheriff’s office to register his new address; although he was
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initially in violation of the residency restriction, evidence reveals
he was taking steps to correct the violation by finding a new
residence; while he did live within 1,000 feet of the public library,
this was only so by about twenty feet and some ambiguity exists
in how this distance was measured; and, last, Ripps previously
served time in prison from a crime that was later vacated as
violative of our constitutional ex post facto provision.
Id. at 328. Roberts argues that we should likewise conclude that the trial court
abused its discretion here because he had also attempted to cure his probation
violations.
[18] However, we see significant differences between Ripps and Roberts. Whereas
Ripps was only found to have violated one condition of his probation, Roberts
was found to have violated three conditions. Further, as evidenced by the
excerpt from our opinion in Ripps above, there was some ambiguity about
whether Ripps had even violated his probation; Ripps’ violation, if it had
occurred, had been slight; and there was evidence that Ripps had not intended
to violate his probation. That is not the case here.
[19] Instead, there was evidence here that Roberts knew he was violating his
probation when he accessed the internet and that he was specifically warned he
would be terminated from his employment if he left work. Despite these facts,
Roberts still used Facebook and left work. Further, as the trial court stated
when it ordered Roberts to serve the remainder of his suspended sentence in the
DOC, Roberts had previously been placed in less restrictive placements and had
continued to violate the rules of those placements. Accordingly, we conclude
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that the trial court did not abuse its discretion in ordering Roberts to serve the
remainder of his suspended sentence in the DOC.
Affirmed.
Baker, J., and Bradford, J., concur.
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