KEMPER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jesse Jeremiah Kemper, Sr., appeals the trial court's sanction following the revocation of his placement on probation. Kemper raises one issue for our review, namely, whether the court abused its discretion when it ordered him to serve the entirety of his previously suspended sentence. We affirm.

Facts and Procedural History

[2] On August 28, 2017, following an allegation that Kemper had been found in possession of 231 grams of methamphetamine, the State charged him with one count of attempted dealing in methamphetamine, as a Level 2 felony, and one count of possession of methamphetamine, as a Level 3 felony. On March 1, 2018, Kemper entered into a plea agreement with the State pursuant to which he agreed to plead guilty to possession of methamphetamine, as a Level 3 felony, in exchange for the dismissal of the Level 2 felony charge. The parties also agreed to a nine-year, fully executed sentence with the option for Kemper to seek a modification upon the completion of a purposeful incarceration program. The court accepted the plea agreement, entered judgment of conviction, and sentenced Kemper accordingly.

[3] On May 30, 2019, after he successfully completed the Recovery While Incarcerated program, Kemper filed a motion to modify his sentence. The court granted his motion on July 12, 2019. The court ordered that Kemper be released from incarceration and placed on supervised probation for five years. The court additionally ordered that Kemper “shall attend weekly AA/NA meetings and provide proof to his Probation Officer” and that he “shall obtain employment and provide proof to his Probation Officer.” Appellant's App. Vol. 2 at 112.

[4] On September 1, 2023, the State filed a petition alleging that Kemper had violated the terms of his probation. Specifically, the State alleged that Kemper had “failed to report” to probation since April 17, 2023, which resulted in him “missing 5 months.” Id. at 133. The State also alleged that Kemper “had not responded to two letters that have been sent to him” with dates to report, that he had “not provided proof of attending AA/NA meetings,” and that he had “not provided proof of employment.” Id. Additionally, the State alleged that he owed $1,420 in probation fees and $496 in court fees.

[5] The court issued a warrant for Kemper's arrest on September 5, and it was ultimately served on June 8, 2024. Sometime after, Kemper provided his probation officer with a copy of a subcontractor agreement demonstrating that he had employment as of June 18 performing repair work on motorcycles. At a hearing on September 24, Kemper submitted a copy of a document listing twenty-four AA/NA meetings he had attended between April 3 and September 19, 2024. Thereafter, on December 10, Kemper's probation officer informed Kemper that he needed to report to probation by 3:00 p.m. every Friday. Kemper reported on December 20, but he did not report again after that.

[6] The court held a fact-finding hearing on the State's petition on March 4, 2025. During the hearing, James Grizzel, the Chief Probation Officer for the Crawford County Circuit Court, testified that Kemper's probation had originally been transferred to Warrick County and that, while there, Kemper missed an appointment and did not return a phone call. Grizzel then testified that Kemper's probation was transferred back to Crawford County but that Kemper had “simply not reported to Probation.” Tr. at 6. He also testified that the probation department had “attempted to contact him via phone and sent letters,” but Kemper “did not respond.” Id. at 9. Grizzel testified that Kemper “reported on December 20, 2024[,] and has not reported since.” Id. at 10. On cross-examination, Grizzel testified that Kemper provided documentation to show that he had attended twenty-four AA/NA meetings between April and September 2024. In addition, the State presented evidence that Kemper owed $1,553 in probation fees.

[7] Kemper testified in his defense. During his testimony, he acknowledged that he had quit his job and was no longer employed, but he testified that he was trying to start his own business. He also acknowledged that he only went to AA/NA meetings “when [he] can make them” and that it was not “once a week” because he “had so much on [his] plate.” Id. at 38.

[8] Following the hearing, the court revoked Kemper's placement on probation and ordered that he serve the entirety of his previously suspended sentence in the Department of Correction. This appeal ensued.

Discussion and Decision

[9] Kemper appeals the court's revocation of his placement on probation. As our Supreme Court has explained:

“Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the trial court to determine probation conditions and to revoke probation if the conditions are violated. Id.

Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation. Id.

Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).

[10] On appeal, Kolson does not dispute that he violated the terms of his probation. But he challenges the court's sanction for his violation. Upon determining that a probationer has violated a condition of probation, the trial court may “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(h)(3). “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.” Prewitt, 878 N.E.2d at 188. We review a trial court's decision to revoke probation and a trial court's sentencing decision in a probation revocation proceeding for an abuse of discretion. Id. (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.

[11] Here, Kemper acknowledges his probation violations, but he contends that the court abused its discretion when it ordered him to serve the entirety of his previously suspended sentence because the violations were “relatively minor,” because his first violation did not occur until “nearly four full years” into his suspended sentence,” and because his failure to attend weekly AA/NA meetings was due to “the difficulty presented by his care-giving responsibilities.” Appellant's Br. at 13. He further contends that he has shown “enormous progress,” that he did not incur “an additional criminal offense,” and that he passed “every single drug test.” Id. at 14.

[12] However, Kemper routinely failed to report to probation as ordered. Indeed, Kemper's probation was initially transferred to Warrick County, where he missed an appointment on April 17, 2023. After that, Kemper continued to not report, and Warrick County returned Kemper's probation to Crawford County. The Crawford County probation office attempted to contact him via phone and letters, but “he did not respond.” Tr. at 9. The State then filed its petition to revoke his placement on September 1, and the court issued a warrant for his arrest, which was not served until June 8, 2024. Then, despite explanations by probation officers at court hearings that he needed to report, Kemper reported to probation only on December 20, 2024, but not again.

[13] In addition, Kemper failed to comply with the requirement that he attend weekly AA/NA meetings. While Kemper provided proof that he attended twenty-four meetings between April 3 and September 19, 2024, he did not present any evidence to demonstrate that he had attended any weekly meetings from the time he was placed on probation on July 12, 2019, until April 3, 2024, or that he attended any meetings between September 19, 2024, and the March 4, 2025, fact-finding hearing. And Kemper admitted during the hearing that he “had so much on his plate” that he only attended meetings “when [he] can make them.” Id. at 38. Stated differently, despite being on probation following a conviction for possessing over two hundred grams of methamphetamine, Kemper completely failed to comply with the court's order for the majority of the time that he was on probation, partially complied for a six-month period, and then completely failed to comply again for the time period leading up to the hearing.

[14] Further, the State presented evidence that Kemper did not comply with the requirement to remain employed. Again, Kemper was placed on probation on July 12, 2019. It was not until sometime after June 2024 that Kemper provided evidence to his probation officer that he had obtained employment as of June 18. However, at the time of the fact-finding hearing in March 2025, Kemper had quit his job and was attempting to start his own business. And the State presented evidence that Kemper owed over $1,500 in probation fees.

[15] Under the circumstances of this case, where Kemper routinely failed to report to probation, was noncompliant with the requirement to attend weekly AA/NA meetings for all but one six-month period, and was only employed for a short period of time almost four years after he was released to probation, we cannot say that the trial court abused its discretion when it ordered Kemper to serve the entirety of his previously suspended sentence.

Conclusion

[16] The trial court did not abuse its discretion when it ordered Kemper to serve the entirety of his previously suspended sentence. We therefore affirm the trial court.

[17] Affirmed.

Bailey, Judge.

Brown, J., and Weissmann, J., concur.