Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 1 of 7

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

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Supervising Deputy Attorney 

General

Lyubov Gore

Deputy Attorney General

Craig C. Siebe

Certified Legal Intern

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

James W. Geary, II,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 30, 2018

Court of Appeals Case No.

34A02-1711-CR-2724

Appeal from the Howard Circuit 

Court

The Honorable Lynn Murray, 

Judge

Trial Court Cause No.

34C01-1306-FB-89

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2724 | May 30, 2018 Page 2 of 7

[1] James W. Geary, II (“Geary”) pleaded guilty to Class C felony child 

solicitation in the Howard Circuit Court in 2014. He received an eight-year 

sentence in the Indiana Department of Correction (“DOC”) with five years 

executed and three years suspended to supervised probation. In November 

2017, the trial court found that Geary violated his probation, and it ordered

Geary to serve the remainder of his suspended sentence in the DOC. Geary 

now appeals arguing that the trial court abused its discretion when it revoked 

his suspended sentence.

[2] We affirm. 

Facts and Procedure

[3] In 2013, Geary was charged with Class B felony attempted sexual misconduct 

with a minor, Class C felony child solicitation, Class D felony sexual battery, 

Class A misdemeanor sex offender internet offense, and a habitual offender 

enhancement.1 On March 27, 2014, Geary pleaded guilty to Class C felony 

child solicitation pursuant to a plea agreement that called for eight years in the 

DOC with five years executed and three years suspended to supervised 

probation. The trial court accepted Geary’s plea and sentenced him in 

accordance with its terms. 

 

1

In 2014, the State added an additional charge of Class C felony sexual misconduct with a minor. 
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[4] Geary was released from the DOC in July 2016. As part of Geary’s supervised 

probation, he agreed to special probation conditions for adult sex offenders 

including: Condition 14, which states that Geary shall not engage in a sexual 

relationship with anyone who has a child under the age of sixteen unless given 

permission; Condition 17, which states that Geary shall not have any contact 

with anyone under the age of sixteen unless given court approval or after the 

successful completion of a court-approved sex offender treatment program; and 

Condition 25, which prohibits Geary from accessing certain web sites, chat 

rooms, or instant messaging programs frequented by children. See Appellant’s 

App. pp. 38–40.

[5] On September 22, 2017, the State filed a petition to revoke Geary’s suspended 

sentence for violating the above three conditions. The State alleged that Geary 

violated Condition 14 by having a sexual relationship with L.B., who had a 

two-year-old child, M.B., at the time. And Geary had a sexual relationship with 

C.D., who had two children at the time, three-year-old S.D. and eight-monthold L.O. He allegedly violated Condition 17 by having contact with M.B. three 

to four times and contact with S.D. and L.O. over twenty times. Finally, the 

State alleged Geary violated Condition 25 by sending messages to L.B. via 

Facebook messenger. 

[6] On November 1, 2017, the trial court held a fact-finding and sentencing hearing 

on the State’s petition. During the hearing, Geary admitted that all three 
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violations were true. The court then ordered Geary to serve the 1,095-day2

remainder of his suspended sentence to be executed in the DOC. Geary now 

appeals.

Discussion and Decision

[7] Geary contends that the trial court abused its discretion when it ordered him to 

serve the balance of his previously suspended sentence in the DOC. Geary does 

not deny that he violated the terms of his probation; to the contrary, he 

admitted to having done so. He claims only that the trial court abused its 

discretion in ordering the execution of the entirety of the suspended sentence 

because although “rules were broken . . . rehabilitation is not served by simply 

throwing [him] aside when the process is difficult.” Appellant’s Br. at 6. The 

State responds that the trial court did not abuse its discretion because Geary’s 

conditions of probation “do not exist solely to rehabilitate offenders” but 

“[t]hey also serve the critical function of protecting the community from 

offenders.” Appellee’s Br. at 8–9. 

[8] Upon a finding of a probation violation, a trial court may impose one or more 

of the following sanctions:

(1) Continue the person on probation, with or without 

modifying or enlarging the conditions.

 

2 Because Geary had been in jail since September 27, 2017, he had 82 days of credit time, and thus his 

remaining executed sentence at the time of the hearing was 1,013 days. 
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(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).

[9] A defendant is not entitled to serve a sentence in a probation program; rather, 

such placement is a matter of grace and a conditional liberty that is a favor, not 

a right. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006). We 

review the trial court’s sentencing decisions on probation violations for an 

abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse 

of discretion occurs where the decision is clearly against the logic and effect of 

the facts and circumstances before the court. Id. The trial court should be given 

considerable leeway in deciding how to proceed following the revocation of 

probation. Id. Consequently, so long as proper procedures have been followed, 

the trial court may order execution of a suspended sentence after revoking 

probation. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999); see also

I.C. § 35-38-2-3(h). 

[10] Here, Geary was on probation for Class C felony child solicitation, and thus he 

was subject to certain special probation conditions for adult sex offenders. 

Geary readily admits to violating three of those probation conditions. See Tr. 

pp. 16–18. And Geary’s counsel stated during the hearing, “yes, my client 

technically violated these rules.” Id. at 22. The trial court later told Geary, “you 

had to follow the rules . . . these conditions aren’t that hard to do, and I would 
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find that it’s appropriate both for the protection of the community, particularly 

for the children involved, that you would be ordered to serve the balance of 

your suspended sentence.” Id. at 24. We agree.

[11] Geary’s only argument on appeal seems to be that the rehabilitative nature of 

probation is not served by ordering him to serve the remainder of his suspended 

sentence in the DOC. See Appellant’s Br. at 6–7. However, Geary actively 

chose to violate three conditions of his probation. See Beeler v. State, 959 N.E.2d 

828, 830 (Ind. Ct. App. 2011) (noting that violating a single condition is 

sufficient for a trial court to revoke probation), trans. denied. He knew what the 

conditions were, because he signed off on them. Moreover, he never attempted 

to notify the probation department that he was in relationships with these two 

women. Instead, Geary chose to disregard the conditions and the consequences 

of any potential violation. See Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018).

[12] We also note that Geary has a prior conviction for child molestation in

Georgia. And he violated the probation conditions in that case by having 

contact with two different minor children than those discussed in this appeal. 

Therefore, although we recognize that rehabilitation is a primary concern 

during sentencing, our supreme court has explained that “judges must have the 

ability to move with alacrity to protect public safety when adjudicated offenders 

violate the conditions of their sentences.” Stephens v. State, 818 N.E.2d 936, 941 

(Ind. 2004). And this is precisely what the trial court did here. 
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Conclusion

[13] Because Geary overtly failed to abide by three probation conditions he agreed 

to follow, and because of his prior criminal history, the trial court was well 

within its discretion to order him to serve the 1,095-day balance of his 

previously suspended sentence. Accordingly, we affirm. 

Riley, J., and May, J., concur.