Keith Jenkins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 22 2016, 8:32 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 Jacob P. Wahl Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keith Jenkins, August 22, 2016 Appellant-Defendant, Court of Appeals Cause No. 82A01-1512-CR-2152 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-0101-CF-47

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016 Page 1 of 11

Case Summary [1] Keith Jenkins appeals the revocation of his probation and the sentence imposed

upon that revocation. We affirm.

Issues [2] The issues before us are:

I. whether there is sufficient admissible evidence to support the revocation of Jenkins’s probation; and

II. whether the trial court abused its discretion in ordering Jenkins to serve the remainder of his sentence in the Department of Correction (“DOC”) and in calculating his credit time.

Facts [3] In 2001, Jenkins was convicted of two counts of Class A felony dealing in

cocaine. The trial court sentenced Jenkins to concurrent terms of forty-five

years executed and five years on probation. In September 2012, Jenkins filed a

petition for modification of his sentence. The petition was based upon

Jenkins’s documented serious health problems. Specifically, Jenkins suffers

from heart failure, requires extensive treatment, and is a heart transplant

candidate. On April 26, 2013, the trial court modified Jenkins’s sentence to

concurrent terms of twenty-four years, seven months, and twelve days. With

time served, this resulted in Jenkins’s release from the DOC on May 3, 2013.

The modification was conditioned upon Jenkins remaining on probation for

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five years, as provided in his original sentence. One of the terms of Jenkins’s

probation required him to obey all state laws. [4] After release from the DOC, Jenkins moved to St. Louis, and his probation was

monitored by the State of Missouri. Jenkins received permission from his

probation officer to travel to Evansville for medical appointments for

specialized treatment of his heart condition. On December 11, 2014, Jenkins

drove to Evansville for one such appointment. After arriving in Evansville and

before going to his appointment, Jenkins went to the home of Joel Kennedy.

Kennedy is the cousin of an acquaintance of Jenkins’s, Larry Weatherspoon.

On that date, Kennedy’s home was under surveillance by Detective Tony

Johnson of the Evansville Police Department as part of a drug task force

investigation. In fact, police had already obtained a search warrant for the

home based upon suspected drug dealing occurring there. Detective Johnson

observed a man later identified as Jenkins enter the home carrying a dark duffel

bag. [5] Approximately five minutes after Jenkins entered the home, Detective Johnson

and a SWAT team executed the search warrant. Detective Johnson saw a

duffel bag identical to the one Jenkins had brought into the home sitting on the

floor. The bag contained several bricks of marijuana, weighing over ten pounds

total, as well as baggies and digital scales. Evansville Police Detective Cliff

Simpson also participated in the search of the residence. He knew Jenkins from

prior investigations but did not expect him to be at Kennedy’s residence. The

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drug task force’s investigation had been focused solely upon Kennedy and

Weatherspoon. [6] The State charged Jenkins with Level 5 felony dealing in marijuana.

Additionally, on January 5, 2015, the State filed a petition to revoke Jenkins’s

probation. On January 23, 2015, the trial court placed Jenkins on home

detention pending resolution of the petition to revoke; the order required

Jenkins to live in Evansville but gave him permission to leave home for medical

appointments. [7] Before there was a hearing on the probation revocation petition, there was a

trial on the underlying criminal charge against Jenkins that resulted in a hung

jury. A probation revocation hearing was held on October 30, 2015. Jenkins

testified that he had gone to Kennedy’s house solely to rest and play video

games before going to his medical appointment and denied any involvement in

marijuana dealing. During rebuttal testimony, Detective Simpson mentioned

collecting a wheeled suitcase from the residence’s attic that smelled of

marijuana, in addition to the duffel bag. Apparently, the suitcase had not

previously been mentioned in police reports or during Jenkins’s criminal trial.

At the conclusion of this hearing the trial court took the matter under

advisement. [8] On November 6, 2015, the trial court held a hearing and announced that it had

found by a preponderance of the evidence that Jenkins had violated his

probation. It revoked Jenkins’s probation and ordered him to serve five years in

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the DOC. It granted Jenkins credit for time served and good time credit for the

period between December 11, 2014 and December 23, 2014,1 but did not grant

Jenkins any credit time for his time on home detention since January 23, 2015.

Jenkins’s attorney objected that “one of the witnesses at that case changed . . .

well stated something new at the hearing that he never mentioned anywhere in

his affidavits or at his testimony at the prior trial. Out of the blue new evidence

came in.” Tr. p. 67. The trial court reaffirmed its ruling in light of this

objection. The State thereafter orally moved to dismiss the underlying criminal

case against Jenkins. Jenkins now appeals.

Analysis I. Sufficiency of the Evidence

[9] Jenkins first contends there is insufficient admissible evidence to support the

revocation of his probation. Probation is a matter of trial court grace, not a

right to which a criminal defendant is entitled. Heaton v. State, 984 N.E.2d 614,

616 (Ind. 2013). “It is within the discretion of the trial court to determine

probation conditions and to revoke probation if the conditions are violated.”

Id. We review a trial court’s revocation of probation and any sanctions

imposed thereon for an abuse of discretion. Id. An abuse of discretion occurs if

a decision is clearly against the logic and effect of the facts and circumstances

before the trial court, or if it has misinterpreted the law. Id. The first step in the

1 This appears to represent time that Jenkins spent in jail following his arrest for Level 5 felony dealing in marijuana.

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probation revocation process is determining whether a violation of a condition

of probation actually occurred. Id. The second step is determining the

appropriate sanction for a violation. Id. [10] Tied into Jenkins’s sufficiency argument is his claim that the State improperly

introduced evidence during the probation revocation hearing that had never

been previously disclosed to Jenkins, either as part of the revocation

proceedings or the underlying criminal proceedings. Jenkins contends that this

violated his due process rights. The due process rights to which a probationer is

entitled before revocation may occur are: “(a) written notice of the claimed

violations of probation; (b) disclosure of the evidence against him; (c) an opportunity

to be heard and present evidence; (d) the right to confront and cross-examine

adverse witnesses; and (e) a neutral and detached hearing body.” Woods v.

State, 892 N.E.2d 637, 640 (Ind. 2008) (emphasis added). [11] However, Jenkins did not contemporaneously object to any testimony or

evidence during the revocation evidentiary hearing. The only objection to the

evidence came at a hearing several days later, after the trial court had already

announced its ruling. The failure to object to evidence introduced during a

probation revocation hearing generally waives any claim of error. Marsh v.

State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004). Additionally, Jenkins fails to

specify in his brief precisely what evidence or testimony the State presented that

had not previously been disclosed to him; Jenkins’s belated objection also did

not specify the objectionable evidence. It would appear, as the State notes in its

brief, that Jenkins is complaining about Detective Simpson’s testimony

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regarding the wheeled suitcase found in the attic of Kennedy’s home.

However, by failing to specify what evidence he found objectionable or how it

prejudiced him, Jenkins’s argument on this point lacks cogency and is further

waived for this reason. See Howard v. State, 32 N.E.3d 1187, 1195 n.11 (Ind. Ct.

App. 2015) (citing Ind. Appellate Rule 46(A)(8)(a)). [12] Waiver notwithstanding, and assuming that Jenkins’s argument is about the

evidence regarding the wheeled suitcase, we see no basis for reversing the

revocation of his probation. In order to revoke probation based on the

commission of a new crime, the State does not have to show that the defendant

was convicted of a new crime. Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.

App. 2015). It is sufficient if the State can demonstrate the commission of a

new crime by a preponderance of the evidence. Id. In fact, a defendant’s

probation may be revoked for commission of a new crime even if the defendant

was acquitted of having committed the offense, because of the lower standard

of proof for probation revocations. Thornton v. State, 792 N.E.2d 94, 99 (Ind.

Ct. App. 2003). [13] If we disregard the evidence regarding the suitcase, there still is sufficient

evidence to support revocation based on Jenkins’s commission of a new crime.

Indeed, the evidence regarding the suitcase is irrelevant. The suitcase was not

directly tied to Jenkins. Rather, the State’s evidence against Jenkins focused

upon his carrying a duffel bag into Kennedy’s home, which was searched five

minutes after Jenkins entered the home, and following a drug task force

investigation into drug dealing there. The same duffel bag Detective Johnson

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saw Jenkins carry into the home was found to contain over ten pounds of

marijuana and other indicia of dealing, i.e. digital scales and plastic baggies.

Although officers had not expected to see Jenkins at the house, that does not

negate their testimony that he was in fact there and carried the duffel bag into

the house. And, even though the State failed to convince a jury that Jenkins

was guilty beyond a reasonable doubt of dealing in marijuana, that did not

preclude the trial court from finding by a preponderance of the evidence that he

had done so. See id. There is sufficient evidence to support the revocation of

Jenkins’s probation, even if we assume that the evidence regarding the wheeled

suitcase was inadmissible.

II. Sentence

[14] Jenkins also contends that, in light of his serious health concerns, the trial court

abused its discretion in ordering him to serve the remaining five years of his

sentence at the DOC. We will reverse the sanction imposed by a trial court

following a determination that a probation violation occurred only if the

defendant can establish that the decision is clearly against the logic and effect of

the facts and circumstances before the trial court, or if it has misinterpreted the

law. Heaton, 984 N.E.2d at 616. In light of the grace afforded in ordering

probation in the first place, trial courts have considerable leeway in deciding

how to proceed once a defendant has been found to have violated probation.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). [15] We are fully cognizant of Jenkins’s serious health concerns, which have been

well-documented by the DOC. Indeed, before Jenkins’s sentence was modified Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016 Page 8 of 11

in 2013, the DOC had assisted Jenkins in preparing a petition for medical

clemency; the fate of that petition is unclear, but in any event was essentially

rendered moot when Jenkins obtained his release from the DOC in May 2013.

However, that release represented a generous exercise of grace by the trial

court. When the trial court modified Jenkins’s sentence, it drastically cut his

original sentence of forty-five years executed to approximately twenty-four-and-

a-half years executed, which amounted to time served when including good

time credit. But Jenkins was not entirely free after the sentence modification, as

the trial court retained five years of the sentence to be served on probation. [16] Despite this considerable exercise of grace in light of Jenkins’s health problems,

Jenkins violated the trial court’s trust in him. An unfortunate but reasonable

inference to be made from the evidence is that Jenkins utilized at least one

medical appointment while on probation as a “cover” for drug dealing. Jenkins

misleadingly states in his brief that his probation was revoked because he was

present in a common nuisance for approximately five minutes. This overlooks

the evidence most favorable to the judgment, which is that he carried a bag

containing over ten pounds of marijuana, along with scales and baggies, into

the home. Jenkins was not merely an innocent bystander when the SWAT

team executed the search warrant for the home. In sum, the trial court did not

abuse its discretion in ordering Jenkins to serve the entirety of his remaining

five-year sentence in the DOC. [17] Jenkins also contends the trial court erred in not giving him any credit time,

either time served or good time credit, for the time he spent on home detention

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as a condition of release while awaiting resolution of the probation revocation

petition. Credit time is a matter of statutory right, and trial courts do not have

discretion in awarding or denying such credit. Harding v. State, 27 N.E.3d 330,

331–32 (Ind. Ct. App. 2015). Under Indiana Code Section 35-38-2.5-5(e) and

(f), a person confined to home detention as a condition of probation earns both

credit for time served and good time credit. Also, under Indiana Code Section

35-38-2.6-6, a person confined to home detention as part of a sentence executed

through a community corrections program earns both credit for time served and

good time credit. [18] However, this court previously has held that a defendant placed on home

detention as a condition of release pending resolution of a probation revocation

petition was not entitled to any credit for time served upon revocation of

probation and imposition of sentence, pursuant to Indiana Code Section 35-50-

6-3. Senn v. State, 766 N.E.2d 1190, 1201-02 (Ind. Ct. App. 2002). That statute

applies to offenses committed before July 1, 2014, and awards varying levels of

“good time credit for each day the person is imprisoned for a crime or confined

awaiting trial or sentencing,” depending on the defendant’s class assignment. 2

As held in Senn and other cases, this statute does not allow an award of credit

time for time spent on home detention as a condition of pretrial release because

it is not “confinement.” Id. (citing Purcell v. State, 721 N.E.2d 220, 224 n.6 (Ind.

2 Additionally, prior to July 1, 2015, this statute only referred to an award of “credit time” for time spent in confinement prior to sentencing, not “good time credit.” See I.C. § 35-50-6-3 (2014).

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1999)). Jenkins makes no argument that Senn was incorrectly decided with

respect to credit for time spent on home detention as a condition of release

pending resolution of a probation revocation petition. 3 We must conclude that

the trial court properly denied Jenkins’s request for an award of credit time for

the period he spent on home detention awaiting resolution of the probation

revocation petition.4 See id.

Conclusion [19] There is sufficient admissible evidence to support the trial court’s revocation of

Jenkins’s probation, and its order directing him to serve the remaining five

years of his sentence in the DOC was not an abuse of discretion. Furthermore,

the trial court did not err by failing to award Jenkins any credit for time served

on home detention as a condition of his release pending resolution of the

probation revocation petition. We affirm. [20] Affirmed.

Bailey, J., and Riley, J., concur.

3 The statute governing probation revocation actions is silent regarding how or whether to award credit time for time a defendant spends in confinement or otherwise while awaiting final resolution of a revocation petition. See I.C. § 35-38-2-3. 4 The General Assembly recently enacted a provision allowing a defendant awaiting trial to earn “one (1) day of good time credit for every four (4) days the person serves on pretrial home detention awaiting trial.” I.C. § 35-50-6-3.1(f). This provision, however, did not go into effect until July 1, 2016. See P.L. 44-2016, § 9.

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