MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 23 2016, 8:51 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Graylon D. Bell, May 23, 2016
Appellant-Defendant, Court of Appeals Case No.
84A04-1511-CR-1851
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1308-FC-2405
Vaidik, Chief Judge.
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Case Summary
[1] The trial court revoked Graylon D. Bell’s probation and ordered him to serve
his entire suspended sentence in the Indiana Department of Correction. Bell
now appeals contending that the trial court abused its discretion by ordering
him to serve “the maximum sentence.” Appellant’s Br. p. 6. Given Bell’s
extensive criminal history and numerous probation violations, we conclude that
the trial court did not abuse its discretion when it ordered Bell to serve his entire
suspended sentence in the DOC for violating his probation merely four months
after being released from the DOC. We therefore affirm.
Facts and Procedural History
[2] In August 2013, the State charged Bell with Class C felony intimidation and
with being a habitual offender. Bell and the State entered into a plea
agreement. Pursuant to that agreement, Bell pled guilty to intimidation and
admitted being a habitual offender. The trial court, in accordance with the plea
agreement, sentenced Bell to an aggregate term of ten years, with four years
executed at the DOC, six years suspended, and a minimum of two years on
probation. Appellant’s App. p. 168.
[3] Bell was released from the DOC in April 2015 and signed his probation
conditions in June 2015. Then, in August 2015, the probation department filed
a notice of probation violation. The notice alleged that Bell violated his
probation for (1) committing a new offense (domestic battery) on August 19; (2)
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failing to report a change of address within forty-eight hours; and (3) missing a
probation appointment on August 12. Following a hearing, the trial court
found that Bell violated his probation for all three reasons. Id. at 189. The trial
court then revoked Bell’s probation and ordered him to serve “the remainder of
his suspended sentence of six (6) years” in the DOC. Id. at 192.
[4] Bell now appeals.
Discussion and Decision
[5] Bell contends that the trial court abused its discretion by ordering him to serve
his entire suspended sentence in the DOC for violating his probation. Once a
trial court has exercised its grace by ordering probation rather than
incarceration, “the judge should have considerable leeway in how to proceed.”
Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not
given to trial courts and sentences were scrutinized too severely on appeal, trial
judges might be less inclined to order probation. Id. Accordingly, a trial court’s
sentencing decision for a probation violation is reviewable under the abuse-of-
discretion standard. Id. An abuse of discretion occurs where the decision is
clearly against the logic and effect of the facts and circumstances. Id.
[6] Probation revocation is a two-step process. First, the trial court must determine
that a violation of a condition of probation actually occurred. Woods v. State,
892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is proven, then the trial
court must decide whether the violation warrants revocation of probation. Id.
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If the trial court finds that the probationer violated a condition of probation at
any time before the probationary period ended, then the court may:
(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.
Ind. Code § 35-38-2-3(h).
[7] On appeal, Bell does not contest that he violated the terms of his probation;
instead, he argues that the trial court abused its discretion by ordering him to
serve “the maximum sentence of 6 years.” Appellant’s Br. p. 6. He claims that
“a shorter period of incarceration followed by placement in a community
corrections program would have been a more appropriate disposition in this
case.” Id. at 7-8.
[8] As Bell concedes, he has “a lengthy criminal history.” Id. at 7. This history,
which comprises nine pages of his PSI, includes convictions for, among other
things, disorderly conduct, criminal conversion, child molesting, criminal
trespass, battery, battery by means of a deadly weapon, theft, rape, invasion of
privacy, stalking, operating a vehicle as an HTV, failure to return to lawful
detention, and residential entry. In addition, also as Bell concedes, he has
violated probation numerous times. Given Bell’s extensive criminal history and
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failed probations, the trial court acted well within its discretion when it ordered
Bell to serve his entire suspended sentence in the DOC for violating his
probation, again, by committing yet another crime merely four months after
being released from the DOC.
[9] Affirmed.
Barnes, J., and Mathias, J., concur.
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