MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 03 2017, 8:50 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
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shaun S. Nesbit, July 3, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1611-CR-2704
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D01-1108-FB-2493
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017 Page 1 of 4
[1] Shaun S. Nesbit appeals following the revocation of his probation. On appeal,
Nesbit argues that the trial court abused its discretion in ordering him to serve
the remainder of his previously suspended sentence in the Department of
Correction (DOC).
[2] We affirm.
Facts & Procedural History
[3] In 2012, Nesbit was convicted pursuant to a guilty plea of class B felony dealing
in methamphetamine. He was sentenced to fourteen years, with six years
executed and eight years suspended to probation. Several notices of probation
violation were filed against Nesbit over the ensuing years. The one relevant to
this appeal alleged that Nesbit had violated probation by committing multiple
new offenses, testing positive for methamphetamines, amphetamines, and
marijuana, and failing to report to probation. Nesbit admitted to violating
probation in exchange for the dismissal of the new charges, and he requested
that he be allowed to continue on probation on the condition that he enter a
long-term drug treatment program. The trial court rejected Nesbit’s request and
ordered him to serve the entirety of his previously suspended sentence in the
DOC. Nesbit now appeals.
Discussion & Decision
[4] On appeal, Nesbit argues that the trial court abused its discretion by ordering
him to serve the remainder of his previously suspended sentence in the DOC.
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We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the
logic and effect of the facts and circumstances before the court. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[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. “If the court finds the
defendant has violated a condition of his probation at any time before the
termination of the probationary period, and the petition to revoke is filed within
the probationary period, then the court may order execution of the sentence
that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h).
[5] Nesbit argues that in light of his ongoing struggles with substance abuse, he
should have been allowed to enroll in a long-term substance abuse treatment
program rather than ordered to serve his sentence in the DOC. 1 We are
unconvinced. We note, as did the trial court, that Nesbit has received extensive
treatment for his substance abuse, but nevertheless continues to abuse drugs and
commit new crimes. Nesbit has been shown considerable lenience and given
multiple opportunities to address his addiction, all to no avail. In the words of
1
Nesbit’s reliance on Ind. Appellate Rule 7(B) is misplaced. See Jones v. State, 885 N.E.2d 1286, 1290 (Ind.
2008) (explaining that the sanctions imposed for a probation violation are not subject to review for
inappropriateness pursuant to Ind. App. R. 7(B)).
Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2704 | July 3, 2017 Page 3 of 4
the trial court, Nesbit has “earned [his] way back to the DOC, plain and
simple.” Transcript Vol. 3 at 26.
[6] Judgment affirmed.
[7] Kirsch, J. and Mathias, J., concur.
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