Jason L. Holland v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 8:44 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason L. Holland, April 29, 2016 Appellant-Defendant, Court of Appeals Case No. 84A01-1512-CR-2126 v. Appeal from the Vigo County Superior Court 1 State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause Nos. 84D01-1403-FC-630 84D01-1403-FD-840

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 1 of 6

Case Summary [1] Jason L. Holland (“Holland”) was found to have violated the terms of his direct

placement in community corrections and his probation when he used illicit

drugs and alcohol while on home detention. As a sanction, the trial court

ordered Holland to serve the balance of his community corrections placement

in the Indiana Department of Correction (“DOC”), but did not disturb its

original probation order. On appeal, Holland challenges the trial court’s

finding that he violated the terms of his probation. We affirm.

Facts and Procedural History [2] On March 11, 2014, under cause number 84D01-1403-FC-630 (“FC-630”),

Holland was charged with Operating a Motor Vehicle while Privileges are

Forfeited for Life, a Class C felony,1 and Possession of Marijuana, as a Class A

misdemeanor.2 On April 4, 2014, under cause number 84D01-1403-FD-840

(“FD-840”), Holland was charged with Receiving Stolen Auto Parts, as a Class

D felony.3 On July 29, 2014, Holland agreed to plead guilty to the charges in

both FC-630 and FD-840. On September 8, 2014, the trial court accepted

Holland’s plea agreement, entered judgments of conviction, and sentenced him

1 Ind. Code § 9-30-10-17. This offense is now a Level 5 felony. We refer to the statute in effect at the time Holland committed his offense. 2 I.C. § 35-48-4-11(1). 3 I.C. § 35-43-4-2.5(c).

Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 2 of 6

to an aggregate sentence of six years in the DOC, with two years executed on

home detention as a direct placement in community corrections and four years

suspended to formal probation. [3] Holland began his home detention monitoring on September 3, 2015.4 On

October 16, 2015, the State filed a “Petition to Revoke Direct Placement in the

Home Detention Program and/or to Revoke Probation,” in which it alleged

that Holland had violated his community corrections placement by testing

positive for amphetamine, methamphetamine, THC, and alcohol on September

4, 2015, and by testing positive for alcohol on September 8, September 10,

October 2, and October 14, 2015, all in violation of Home Detention Rule 4. [4] On November 9, 2015, the trial court held a hearing on the petition, at the

conclusion of which it found Holland violated his community corrections

placement and his probation. Following a sanctions hearing, the court ordered

Holland to serve the balance of his two-year community corrections placement

in the DOC, followed by four years of formal probation. Holland now appeals.

Discussion and Decision [5] Holland does not dispute that he violated the terms of his community

corrections placement when he violated the home detention rules. Rather,

4 Holland did not begin his community corrections placement for nearly a year, apparently because he was arrested and incarcerated in Missouri for several months after he was sentenced in this case.

Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 3 of 6

Holland contends there was insufficient evidence of the terms of his probation

to support the court’s finding that he violated those terms. [6] Probation is not a right to which a criminal defendant is entitled, but a matter of

grace left to a trial court’s discretion. McCauley v. State, 22 N.E.3d 743, 746

(Ind. Ct. App. 2014), trans. denied. It is within the court’s discretion to

determine probation conditions and to revoke probation if the conditions are

violated. Id. at 747. Accordingly, a trial court’s probation decision is subject to

review for abuse of discretion. Id. An abuse of discretion occurs when the

decision is clearly against the logic and effects of the facts and circumstances

before the court. Id.

Because a probation hearing is civil in nature, the State must prove the alleged probation violation by a preponderance of the evidence. In reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Instead, we consider only the evidence most favorable to the trial court’s decision to revoke probation. We will affirm when there is substantial evidence of probative value to support the court’s conclusion that a probationer has violated any condition of probation.

Johnson v. State, 692 N.E.2d 485, 486 (Ind. Ct. App. 1998) (citations omitted).

Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 4 of 6 [7] At the revocation hearing, the State presented evidence that Holland tested

positive for illicit drugs and alcohol during the probationary period,5 but did not

introduce evidence of the probation terms. However, Holland did not object on

the grounds that refraining from drug and alcohol use was not a condition of his

probation. The issue is thus waived. See Johnson, 692 N.E.2d at 486-87

(holding that probationer waived appellate argument that conditions of

probation were not proven where he failed to object on these grounds at the

revocation hearing); Bryce v. State, 545 N.E.2d 1094, 1098 (Ind. Ct. App. 1989)

(same), trans. denied. [8] Moreover, even if Holland’s issue was not waived, it would have been within

the court’s authority to revoke his probation solely because he violated the

terms of his community corrections placement. See I.C. § 35-38-2.6-5(4) (2015)

(providing that if a person directly placed in a community corrections program

violates the placement terms, the community corrections director may request

that the court revoke the placement and commit the person to the county jail or

department of correction for the remainder of the person’s sentence); McCauley,

22 N.E.3d at 747 (holding that prior version of Section 35-38-2.6-56 provides the

5 Although Holland was on home detention at the time, “the probationary period begins immediately after sentencing and ends at the conclusion of the probationary phases of the defendant’s sentence.” Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000), trans. denied. Probation can be violated prospectively. Id. 6 The prior version of the statute similarly provided: “If a person who is placed [in community corrections] under this chapter violates the terms of the placement, the court may, after a hearing, . . . [r]evoke the placement and commit the person to the department of correction for the remainder of the person’s sentence.” I.C. § 35-38-2.6-5(3) (1991).

Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 5 of 6

court with “authority to order [a person] incarcerated for the remainder of his

sentence, regardless of the term of probation included in the original sentencing

order, because he violated the terms of his home detention”). [9] Finally, although Holland asks this Court to reverse the revocation of his

probation, it does not appear that Holland’s probation was actually revoked.

After finding Holland violated his placement and probation terms, the trial

court ordered Holland to serve the balance of his two-year community

corrections placement in the DOC, followed by four years of formal probation.

The court’s sanction thus modified his placement, but did not alter the

probationary period to which he was originally sentenced. Any alleged error in

the court’s finding that Holland violated his probation was therefore harmless

and not grounds for granting reversal on appeal. See Ind. Appellate Rule 66(A). [10] The trial court did not abuse its discretion when it found that Holland violated

the terms of his probation. [11] Affirmed.

Bradford, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016 Page 6 of 6