Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jerry T. Drook

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Edward Flynn,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 28, 2016

Court of Appeals Case No.

27A02-1605-CR-1027

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

Trial Court Cause No.

27D02-1101-FB-8, 27D02-1601-F6-

4

Altice, Judge.

Case Summary
Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 2 of 6

[1] Edward Flynn admitted that he violated the terms of his probation by 

committing new criminal offenses. On appeal, he argues that the trial court 

abused its discretion in ordering that he serve 2 years and 333 days of his 

previously suspended six-year sentence.

[2] We affirm.

Facts & Procedural History

[3] On September 12, 2011, Flynn pled guilty to two counts of robbery as Class C 

felonies under Cause No. 27D02-1101-FB-8 (FB-8). The trial court sentenced 

him to an aggregate term of ten years with four years served in the Department 

of Correction (DOC) and six years suspended to probation. 

[4] On July 12, 2015, while on probation for his convictions in FB-8, Flynn was 

charged under Cause No. 27H01-1503-CM-113 (CM-113) with two counts of 

Class A misdemeanor domestic battery, and ultimately pled guilty to one count. 

The trial court withheld judgment. 

[5] On January 3, 2016, while still on probation for his convictions in FB-8, Flynn 

battered his wife of one year, Melissa Craig, and her five-year-old son. Flynn 

was arrested and subsequently charged under Cause No. 27D02-1601-F6-4 (F6-

4) with domestic battery in the presence of a child, a Level 6 felony, and battery 

on a child less than 14 years of age, a Level 6 felony. The trial court also issued 

a no-contact order in favor of Craig and her three children. Between January 

15 and February 29, 2016, Flynn made 169 completed phone calls from jail to 
Court of Appeals of Indiana | Memorandum Decision 27A02-1605-CR-1027 | November 28, 2016 Page 3 of 6

Craig’s phone number. At the sentencing hearing, Craig admitted that Flynn 

had spoken to her and her five-year-old son. Based upon these telephone calls, 

the State amended the charging information in F6-4 to add three counts of 

Class A misdemeanor invasion of privacy. 

[6] On January 8, 2016, the State filed a petition to revoke Flynn’s probation under 

FB-8 based on the commission of additional crimes under CM-113 and F6-4. 

On March 4, 2016, Flynn pled guilty under F6-4 to the three counts of invasion 

of privacy, and the State dismissed the domestic battery and battery charges. 

Flynn also admitted to violating his probation under FB-8. At the sentencing 

hearing, Flynn presented testimony from his wife and seventeen-year-old stepson regarding the hardship incarceration would pose on his family. Flynn’s 

adoptive mother also testified about his rough childhood and that Flynn had 

been diagnosed and treated for mental health problems. Thereafter, the trial 

court sentenced Flynn to one year suspended to supervised probation on each 

of the invasion of privacy convictions and ordered such sentences to be served 

consecutive to the sentence in FB-8. With regard to the probation violation, the 

trial court ordered Flynn committed to the DOC for 2 years and 333 days of his

remaining suspended sentence in FB-8. Flynn now appeals. Additional facts 

will be provided as necessary. 

Discussion & Decision
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[7] Flynn argues that the trial court abused its discretion when it ordered him to 

serve 2 years and 333 days of his previously suspended sentence in the DOC as 

a result of his probation violation. 

[8] Probation is a matter of grace left to trial court discretion, not a right to which a 

criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.

App. 2005), trans. denied. Where a trial court has exercised its grace by granting 

a defendant probation in lieu of incarceration, it has considerable leeway in 

deciding how to proceed when the defendant then violates the conditions of his 

probation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the sanction 

imposed by the trial court upon a finding of a probation violation is reviewed 

on appeal for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953 

(Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs where the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before the court. Id. 

[9] The court has several alternative sanctions it may impose where it has found 

that a defendant has violated his probation. One of those sanctions is to order 

execution of all or part of the sentence that was suspended at the time of initial 

sentencing. Id.; see also Ind. Code § 35-38-2-3(h)(3). In doing so, trial courts are 

not required to balance aggravating and mitigating circumstances. Treece v. 

State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied. 
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[10] In arguing that the trial court abused its discretion by failing to consider several 

of his proffered mitigating circumstances,1 Flynn relies upon Anglemyer v. State, 

868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. However, 

as we have held before, Anglemyer “applies to the imposition of an initial 

sentence—not a sentence imposed following the revocation of probation.” 

Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009). Flynn has cited no 

other authority that requires a trial court to give credence to a defendant’s 

proffered mitigating circumstances in deciding its sentencing disposition 

following a revocation of probation.

2

 

[11] Here, the trial court reinstated a portion of an already-imposed sentence, which 

Flynn cannot collaterally attack. See Stephens v. State, 818 N.E.2d 936, 939 (Ind.

2004) (observing that a defendant cannot collaterally attack a sentence on 

appeal from a probation revocation). Moreover, we note that the trial court 

was authorized by statute to order all of Flynn’s remaining sentence executed. 

Instead, the court imposed less than half of the remaining suspended sentence. 

 

1

Flynn’s asserted mitigating factors were that incarceration would present a hardship on his family, that he 

had a difficult childhood, that he had been diagnosed with mental health problems, and that his crime neither 

caused nor threatened serious harm to persons or property.

2 Even under the Anglemyer standard, a trial court is required to identify only those mitigating circumstances 

it finds significant. 868 N.E.2d at 490. We note that the trial court expressly indicated it had reviewed the 

sentencing submission Flynn filed with the court in which he set forth his proffered mitigating factors. We 

further note that the trial court set out Flynn’s sentence in F6-4 and FB-8 immediately following his evidence 

in support of his proffered mitigating factors. Under these circumstances, it can be inferred that the trial court 

did not find these mitigating circumstances to be significant.
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Flynn has not shown that the trial court abused its discretion in ordering that he 

serve 2 years and 333 days of his previously suspended sentence.

[12] Judgment affirmed.

[13] Bradford, J., and Pyle, J., concur.