Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 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

James D. Crum

Coots, Henke & Wheeler, P.C.

Carmel, Indiana

ATTORNEYS FOR APPELLEES

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony Levell Gregory, II,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 24, 2015

Court of Appeals Case No.

29A02-1502-CR-114

Appeal from the Hamilton Circuit 

Court

The Honorable Paul A. Felix, Judge

Cause No. 29C01-0810-FB-97

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 Page 2 of 6

Case Summary

[1] Anthony Levell Gregory, II (“Gregory”) was convicted of two counts of 

Burglary, as Class B felonies.1 After serving the executed portion of his 

sentence, Gregory was placed on probation. His probation was subsequently 

revoked. Gregory now appeals the trial court’s order revoking his probation 

and ordering him to serve the remainder of his previously suspended sentence 

as executed time, with one year to be served in the Indiana Department of 

Correction and two years to be served with Hamilton County Community 

Corrections.

[2] We affirm.

Issue

[3] Gregory presents a single issue for our review, which we restate as whether a 

probation revocation sanction may be reviewed under Appellate Rule 7(B).

Facts and Procedural History

[4] On October 29, 2008, Gregory was arrested and charged with two counts of 

Burglary, as Class B felonies; Theft, as a Class D felony;2 and Attempted Theft, 

 

1

Ind. Code § 35-43-2-1. In light of the wide-reaching amendments our General Assembly has made to 

Indiana’s criminal statutes, we apply the substantive provisions of our laws effective at the time of Gregory’s 

proceedings.

2

I.C. § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 Page 3 of 6

as a Class D felony.3 On April 2, 2009, based upon a plea agreement, Gregory 

entered a plea of guilty as to the two counts of Burglary. The State dismissed 

the other two charges.

[5] On July 22, 2009, the trial court accepted the plea agreement and sentenced 

Gregory to ten years imprisonment for each of the two counts of Burglary, with 

the sentences to be served concurrent with one another. The trial court ordered 

that Gregory serve six years of his term as executed time, with four years of his 

prison term in the Department of Correction, one and one-half years in the 

Hamilton County Community Corrections’ Work Release Program, and six 

months on Home Detention. Four years of Gregory’s term were suspended to 

probation, with two years of that time to be served as supervised probation. 

[6] On July 6, 2012, Gregory violated the terms of his Community Corrections 

placement. On November 1, 2012, the trial court ordered Gregory to serve the 

remainder of the executed portion of his sentence in the Indiana Department of 

Correction.

[7] On October 24, 2013, Gregory was released by the Indiana Department of 

Correction and was placed under the supervision of the Hamilton County 

Probation Department.

 

3

I.C. §§ 35-41-5-1 & 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 Page 4 of 6

[8] On October 28, 2014, the Probation Department filed an information alleging 

that Gregory had violated multiple terms of his probation. Specifically, the 

information alleged that Gregory had on September 9, 2014 tested positive for 

use of marijuana and alprazolam (a scheduled drug); had been dishonest with a 

probation officer with respect to his use of an illegal drug; and had, on October 

7, 2014 in Fulton County, committed Driving While Suspended, as a Class A 

misdemeanor. 

[9] After several continuances, on February 19, 2015, a fact-finding hearing on the 

information was conducted. During the hearing, Gregory admitted to having 

violated the terms of probation. The trial court accordingly found Gregory to 

have violated probation, and ordered Gregory to serve the three remaining 

years of his sentence as executed time, with one year to be served in the Indiana 

Department of Correction and two years to be spent under the oversight of 

Hamilton County Community Corrections.

[10] This appeal ensued.

Discussion and Decision

[11] On appeal, Gregory argues that the trial court abused its discretion when it 

revoked his probation and ordered him to serve the remainder of his sentence as 

executed time in the Department of Correction and community corrections. 

Specifically, Gregory argues that while revocation was within the trial court’s 

statutory discretion, we should review the revocation of probation for 
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 Page 5 of 6

inappropriateness, as if it were an original sentence under the Indiana 

Constitution and our Appellate Rules.

[12] The Indiana Supreme Court has stated:

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 

(Ind. Ct. App. 2005). The trial court determines the conditions of 

probation and may revoke probation if the conditions are violated. 

Ind.Code Ann. § 35–38–2–3 (West 2007); Goonen v. State, 705 N.E.2d 

209 (Ind. Ct. App. 1999). Once a trial court has exercised its grace by 

ordering probation rather than incarceration, the judge should have 

considerable leeway in deciding how to proceed. If 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. Accordingly, a trial court’s sentencing 

decisions for probation violations are reviewable using the abuse of 

discretion standard. See Sanders, 825 N.E.2d at 956. An abuse of 

discretion occurs where the decision is clearly against the logic and 

effect of the facts and circumstances. Guillen v. State, 829 N.E.2d 142 

(Ind. Ct. App. 2005).

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). When faced with a probation 

violation, the trial court may, in its discretion, continue the probationary 

period, extend the probationary period for up to one year, or order that some or 

all of the probationer’s suspended sentence be served as executed time. I.C. § 

35-38-2-3(h).

[13] In Prewitt, and again in Jones v. State, 885 N.E.2d 1286 (Ind. 2008), the Indiana 

Supreme Court held that application of the inappropriateness standard under 

Appellate Rule 7(B) was “not the correct standard to apply when reviewing a 

sentence imposed for a probation violation.” Prewitt, 878 N.E.2d at 188; Jones, 

885 N.E.2d at 1290. We are not free to determine otherwise today. We 
Court of Appeals of Indiana | Memorandum Decision 29A02-1502-CR-114 | July 24, 2015 Page 6 of 6

accordingly decline Gregory’s request that we reexamine the Indiana Supreme 

Court’s decision on this matter and apply the inappropriateness standard to his 

probation revocation sanction.

[14] Further, we find no abuse of discretion on the trial court’s part in its decision to 

revoke Gregory’s probation in its entirety. Gregory admitted to having 

committed all the alleged violations of the terms of his probation, including 

consumption of marijuana and driving with a suspended license. Prior to being 

on probation, in 2012 Gregory had violated the provisions of his Community 

Corrections placement. Despite the Hamilton County Probation Department’s 

recommendation of ninety days imprisonment with a return to probation, 

Gregory admitted his probation violation and acknowledged that the trial court 

would exercise its discretion in determining a sanction. Thus, we cannot 

conclude that the trial court’s sanction was outside its discretion.

[15] Affirmed.

Riley, J., and Barnes, J., concur.