MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 8:33 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Leanna K. Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jenneil Jackson, April 26, 2016
Appellant-Defendant, Court of Appeals Case No.
15A01-1509-CR-1386
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-1208-FB-43
Pyle, Judge.
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Statement of the Case
[1] Jenneil Jackson (“Jackson”) appeals the trial court’s order that she serve 730
days of her previously suspended sentence for Class B felony conspiracy to
commit burglary after she violated her probation for that conviction.1 On
appeal, Jackson argues that the trial court abused its discretion in ordering her
to serve that amount of her suspended sentence because it was excessive in light
of her desire to reform. In light of Jackson’s criminal history and the fact that
this was her second violation of her probation for her conspiracy to commit
burglary conviction, we conclude that the trial court did not abuse its discretion.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it ordered
Jackson to serve 730 days of her previously suspended sentence in
the Indiana Department of Correction (“DOC”).
Facts
[3] On August 28, 2013, Jackson pled guilty to Class B felony conspiracy to
commit burglary. The trial court sentenced her to 2,920 days, with 1,460 of
those days suspended to probation. One of the conditions of her probation was
that she “[n]ot consume any alcohol, illegal drugs or the synthetic form of any
illegal drug, or controlled substance, without a valid prescription and submit to
1
IND. CODE §§ 35-41-5-2 and 35-43-2-1(1)(B)(i).
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testing as required by Probation, Community Corrections, or a Law
Enforcement Officer.” (App. 26).
[4] On December 1, 2014, Jackson’s probation officer filed a petition to revoke
Jackson’s probation, alleging that on November 24, 2014, Jackson had violated
the terms of her probation by testing positive for marijuana. On May 7, 2015,
Jackson pled guilty to the violation, and the trial court ordered her to serve
forty-four (44) days of her suspended sentence.
[5] Subsequently, on August 10, 2015, Jackson’s probation officer filed a second
petition to revoke her probation. In the petition, the officer alleged that on or
about July 30, 2015, Jackson had tested positive for methamphetamine and
amphetamine. On August 20, 2015, at her initial hearing, Jackson admitted to
violation. As a result, the trial court revoked her probation a second time and
ordered her to serve 730 days of her previously suspended sentence. As a basis
for its order, the trial court cited Jackson’s criminal history and the fact that it
was her second probation violation in this cause. Jackson now appeals.
Decision
[6] On appeal, Jackson argues that the trial court abused its discretion in ordering
her to serve 730 days of her previously suspended sentence in the DOC. She
acknowledges that she violated her probation twice, but she argues that
“[r]ather than using her mistake as an excuse to binge and fall completely off
the wagon, [she] used her relapse as an impetus to try even harder to maintain
sobriety.” (Jackson’s Br. 8). Specifically, she “went to drug classes and is
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working hard to stay sober.” (Jackson’s Br. 8). In light of this desire to change,
Jackson argues that the trial court abused its discretion in ordering her to serve
half of her suspended sentence.
[7] First, we note that “‘[p]robation is a matter of grace and a conditional liberty
[that] is a favor, not a right.’” Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.
App. 2015) (quoting Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012)).
INDIANA CODE § 35-38-2-3(h) sets forth a trial court’s options once the trial
court has found a probation violation. It provides:
If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) 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 (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). Our supreme court has held that a trial court’s sanction
decisions for probation violations are reviewable using the abuse of discretion
standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). This is because
“[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. We will find that a trial court has abused its discretion when its
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decision is clearly against the logic and effect of the facts and circumstances
before it. Id.
[8] Even though Jackson asserts she has been attending drug classes and attempting
to stay sober, we cannot conclude that the trial court abused its discretion when
it ordered her to serve 730 days of her previously suspended sentence. As the
trial court noted, this was Jackson’s second probation violation under this
cause, and the trial court had already granted her leniency when it ordered her
to serve only forty-four days of her suspended sentence and allowed her to then
continue on probation after her first probation violation. In addition, Jackson
has a notable criminal history that includes several drug and alcohol related
offenses. These offenses included, among others, three convictions of Class C
misdemeanor illegal consumption of an alcoholic beverage; one conviction of
Class B misdemeanor disorderly conduct; and one conviction for Class B
misdemeanor public intoxication that endangers the person’s life. In addition,
Jackson was convicted of Class A misdemeanor conversion in 2007 and
violated her probation four times in that cause. In light of the leniency the trial
court afforded Jackson in the past and her criminal history, we conclude that
the trial court did not abuse its discretion when it ordered her to serve 730 days
of her suspended sentence.
[9] Affirmed.
Kirsch, J., and Riley, J., concur.
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