MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jun 21 2017, 8:47 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan K. Bolt Curtis T. Hill, Jr.
Gibson Law Office Attorney General of Indiana
Lafayette, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Greenwell, June 21, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1612-CR-2941
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-7-CF-89
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 1 of 10
[1] David Greenwell appeals the trial court’s order revoking his probation. He
raises two issues which we consolidate and restate as whether the trial court
abused its discretion in ordering him to serve eight years of his previously
suspended sentence and two years of probation. We affirm.
Facts and Procedural History
[2] On July 10, 2000, the State charged Greenwell with four counts of child
molesting as class B felonies. On August 31, 2001, Greenwell and the State
entered a plea agreement providing that he would plead guilty to one amended
count of child molesting as a class A felony and any remaining counts would be
dismissed. The plea agreement provided that any executed portion of the
sentence would not exceed forty years. On October 29, 2001, the court
accepted the plea agreement and sentenced Greenwell to thirty years with
twenty years executed at the Department of Correction followed by ten years
on supervised probation “to include the recommendations as set forth on page
five of the pre-sentence report.” Appellant’s Appendix Volume 2 at 26.
[3] In June 2016, the State filed a petition to revoke probation alleging that
Greenwell had unapproved contact with a child under the age of sixteen years.
On September 15, 2016, the State filed a second petition to revoke probation
alleging that Greenwell left Indiana without prior approval from his probation
officer and also engaged in a sexual relationship with a person who has a child
under the age of sixteen years without prior approval from the court, probation,
or a treatment provider.
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 2 of 10
[4] On December 9, 2016, the court held a hearing. Greenwell admitted that he
violated his probation by having contact with a minor child without obtaining
approval required by the terms of his probation, by leaving Indiana and
traveling to places such as Texas, Missouri, Oklahoma, West Virginia, North
Carolina, and Pennsylvania without permission, and by having a sexual
relationship with a woman who had a child under sixteen years of age without
prior approval from the court, his probation officer, or a treatment provider.
During questioning by his counsel, Greenwell indicated that the woman with
whom he was having a sexual relationship was pregnant with his child. The
court found that Greenwell violated his probation.
[5] Greenwell then testified that he had some difficulty in obtaining jobs given that
he was a registered sex offender and that he invested over $60,000 in a franchise
called Hillbilly Hauling which involved hauling manufactured campers from
point A to point B and back to point A. He testified that he ultimately sought
approval to leave the State but that was denied. When asked by his counsel
what led him to not comply with that order, Greenwell answered: “I just felt
financial – just a bad financial choice and financial stress, just unbelievable
stress.” Transcript Volume II at 16. He testified that he went straight to the
delivery spot with his wife and straight back to his house. When asked about
his sexual relationship with the woman who had a child under sixteen years
old, Greenwell stated: “It was you know absolutely spontaneous and just a
friend of the family and a common interest in music and um . . . you know . . .
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 3 of 10
spontaneous . . . our affections obviously went further than you know natural
friendship, so.” Id. at 17.
[6] The court stated that Greenwell may have the ability to follow the rules but his
desire was truly lacking. The following exchange occurred:
THE COURT: Okay. You’ve been married for eight years and
since your paramour is pregnant it suggests that within the last
nine months you’ve been having sex with another woman and
yet your wife is still supportive, and she was supportive of you
when she rode with you out of state, so I’m not sure what her
role in all of this might be. How long have you been out of the
DOC?
[Greenwell]: Seven years sir.
THE COURT: So you were married while – you and your wife
were married while you were in the Department of Corrections?
[Greenwell]: Yes sir.
THE COURT: And you knew her how long before that?
[Greenwell]: A couple of years.
THE COURT: So you started as pen pals?
[Greenwell]: Well when I was – came down with the cancer she
was part of the prayer group. And we found out that we had a
mutual friend, family friend.
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 4 of 10
THE COURT: This is while you were in the Department of
Corrections?
[Greenwell]: Yes sir.
Id. at 33.
[7] The court stated:
Well I’m going to tell you one thing, I’m happy for you that
medically it was a good – that good things have happened for
you, but I can’t trust you. You know I don’t think you do have
the desire. The nature of these – the nature of these violations is
such that it says that at least, interestingly it says, you left the
state without prior approval, the states including but not limited
to states of Texas, Missouri, Oklahoma, West Virginia, Florida
and North Carolina and Pennsylvania; however, my thought is
you probably in order to get one of those you had to go through
at least Illinois, Kentucky or Ohio, right? You’ve been all over
the country. I don’t know what you’ve been doing all over the
country; I don’t know what you’ve been doing all over the
country with a woman who accepts the fact that you’ve had sex
with another woman.
Id. at 34. The court revoked Greenwell’s probation and ordered him to serve
eight years in the Department of Correction and two years suspended to
probation.
Discussion
[8] The issue is whether the trial court abused its discretion in ordering that
Greenwell serve eight years of his previously suspended sentence. Greenwell
argues that the trial court abused its discretion by ordering eight years of his
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 5 of 10
suspended sentence revoked without considering mitigating factors including
that he admitted the violations of probation, he expressed remorse throughout
the hearing, he had successfully served a large portion of his suspended
sentence on probation with no violations, incarceration would be a hardship on
his family, and he was in financial distress. He also argues that the trial court
abused its discretion by considering improper factors. Specifically, he cites
Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011), and points to the court’s
comments regarding his wife and his extramarital affair and asserts that the
court sent a personal philosophical message.
[9] The State argues that the trial court did not abuse its discretion in imposing
eight years of Greenwell’s ten-year suspended sentence and points to his
multiple violations. With respect to the court’s comment that it did not know
what Greenwell had been doing all over the country with his wife who accepted
the fact that he had sex with another woman, the State asserts it was a reflection
of the court’s concerns about what he was doing in his cross-country jaunts.
The fact that his wife was with him was not sufficient to quell any concerns that
she would stop him from committing any additional sexual misconduct against
children. The State contends that the court was stating that Greenwell’s wife
was not the supervision that someone with Greenwell’s background required,
rather than a reflection of its moral beliefs.
[10] Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial
court finds a probation violation and provides:
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 6 of 10
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.
[11] The Indiana Supreme Court has held that a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The Court explained that
“[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” and that “[i]f this discretion were not afforded to trial courts and
sentences were scrutinized too severely on appeal, trial judges might be less
inclined to order probation to future defendants.” Id. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[12] While a probationer who admits the allegations against him must still be given
an opportunity to offer mitigating evidence suggesting that the violation does
not warrant revocation, Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008), we
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 7 of 10
have previously observed that “trial courts are not required to balance
‘aggravating or mitigating circumstances when imposing sentence in a
probation revocation proceeding.’” Treece v. State, 10 N.E.3d 52, 59-60 (Ind. Ct.
App. 2014) (quoting Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993),
overruled in part by Patterson v. State, 659 N.E.2d 220, 223 n.2 (Ind. Ct. App.
1995) (holding that in a probation revocation proceeding, probationer’s mental
health should be considered)), trans. denied. This stems from the fact that a
probation revocation hearing does not involve the imposition of a sentence, but
is a proceeding to consider the execution of a sentence already imposed. See
Mitchell, 619 N.E.2d at 963-964. As long as the proper procedures have been
followed in conducting a probation revocation hearing, “the trial court may
order execution of a suspended sentence upon a finding of a violation by a
preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.
App. 1999).
[13] In Puckett, this Court observed that the trial court’s statements of reasons for
entirely revoking a defendant’s probation were problematic. 956 N.E.2d at
1186-1187. Specifically, we observed that the trial court plainly and repeatedly
expressed its displeasure with the defendant’s original plea agreement and the
trial court indicated that he should have been convicted of at least a class B
felony. Id. at 1187. We also observed that the court relied upon probation
violation allegations that the State had dismissed, and engaged in extended
discussion regarding its personal beliefs as to the importance of the sex offender
registry, including noting its personal use of the registry. Id. at 1188. We held
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 8 of 10
that “within the context of original sentencing, it is improper for a trial court to
impose a harsh sentence on the basis of the trial court’s desire to send a
personal philosophical message about the general severity of an offense, rather
than focusing upon facts that are peculiar to the particular defendant and
offense.” Id. We concluded that the trial court’s statements of reasons
considering improper factors constituted an abuse of discretion. Id. We find
Puckett distinguishable as there is no suggestion that the trial judge may have
been trying to make up for an initial sentence he considered inadequate, relied
upon dismissed probation violation allegations, or discussed his personal
beliefs.
[14] The record reveals that Greenwell, who had pled guilty to child molesting as a
class A felony, violated his probation numerous times. He admitted that he
violated his probation by having contact with a minor child without obtaining
required approval, left Indiana and traveled to Texas, Missouri, Oklahoma,
West Virginia, North Carolina, and Pennsylvania without permission, and had
a sexual relationship with a woman who had a child under sixteen years of age
without prior approval from the court, his probation officer, or a treatment
provider. The trial court commented that “[t]he nature of these violations and
the number of the violations and the continued violations are very disturbing.”
Transcript Volume II at 35. Given the circumstances as set forth above and in
the record, we cannot say that the court abused its discretion in ordering
Greenwell to serve eight years of his previously suspended ten-year sentence.
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 9 of 10
Conclusion
[15] For the foregoing reasons, we affirm the trial court’s order revoking Greenwell’s
probation and ordering that he serve eight years of his previously suspended
sentence in the Department of Correction and two years of probation.
[16] Affirmed.
May, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2941 | June 21, 2017 Page 10 of 10