Opinion
24A-CR-1271
12-23-2024
Jalen V. Calhoun, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Aaron J. Spolarich Bennett Boehning & Clary, LLP Lafayette, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana Savannah L. Mundy Certified Legal Intern Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Fountain Circuit Court The Honorable Stephanie S. Campbell, Judge Trial Court Cause No. 23C01-2108-F6-392.
ATTORNEY FOR APPELLANT Aaron J. Spolarich Bennett Boehning & Clary, LLP Lafayette, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana Savannah L. Mundy Certified Legal Intern Indianapolis, Indiana.
Tavitas and DeBoer, Judges concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Jalen V. Calhoun appeals the revocation of the probation he was serving for convictions of Class A misdemeanor dealing in marijuana and Level 6 felony resisting law enforcement. He presents three arguments, which we restate as:
1. Whether the State presented sufficient evidence Calhoun violated his probation;
2. Whether the trial court abused its discretion when it ordered Calhoun to execute 580 days of his suspended sentence; and
3. Whether the trial court failed to provide Calhoun credit for the 150 days that the parties agreed he had toward his sentence.
We affirm.
Facts and Procedural History
[¶2] On April 25, 2022, Calhoun entered, and the trial court accepted, a plea agreement by which he would plead guilty to Class A misdemeanor dealing in marijuana and Level 6 felony resisting law enforcement in exchange for a 365-day sentence for the misdemeanor and a 730-day sentence for the felony. The plea agreement indicated the sentences were to be served concurrently, with sixty days served executed via "intermittent incarceration with the balance suspended to probation[.]" (App. Vol. II at 16.) The terms of Calhoun's probation included, in relevant part, that he not violate the law; that he participate in a drug and alcohol assessment and complete all treatment recommended therefrom; and that he not consume or possess any controlled substances. Shortly after sentencing, the trial court granted Calhoun's request to transfer the supervision of his probation to Illinois.
That same day, the trial court memorialized its acceptance of the agreement containing this sentence in an order that mentioned all terms of the agreement except the intermittent incarceration. (See App. Vol. II at 1821.) The trial court entered a separate order on September 26, 2022, that clarified that Calhoun was able to "serve the sixty day executed sentence in intermittent increments of no less than 48 hours[.]" (Id. at 25.) However, neither the trial court's Chronological Case Summary nor its Abstract of Judgment accurately reflects the sentence given to Calhoun, as each indicates Calhoun received a sentence of "60 Days" for his misdemeanor conviction. (Id. at 8, 23.) Because a plea agreement is a contract between the parties that cannot be modified by the trial court after it has been accepted, Davis v. State, 217 N.E.3d 1229, 1232 (Ind. 2023), the trial court erred when it failed to enter an order that indicated Calhoun's sentence for dealing in marijuana was 365 days, with 60 days executed and 305 days suspended to probation. Because the trial court has now revoked Calhoun's 730-day suspended sentence, we note this error but do not order the trial court to enter a corrected Abstract of Judgment. See Ind. Appellate Rule 66(A) ("No error or defect in any ruling or order . . . is ground for granting relief or reversal on appeal where its probable impact . . . is sufficiently minor so as not to affect the substantial rights of the parties.").
[¶3] Calhoun completed only one weekend of his intermittent incarceration. On December 7, 2023, the State filed a petition to revoke Calhoun's probation. The petition alleged Calhoun "acquir[ed] new charges on October 18, 2023, in Macon County, Illinois in Case #23DV124 for Domestic Battery/Bodily Harm, Domestic Battery/Physical Contact, and Resisting an Officer." (Id. at 27.) On March 8, 2024, the State amended its petition to revoke Calhoun's probation by adding an allegation that Calhoun also violated his probation by using marijuana.
[¶4] On April 4, 2024, the trial court held a probation revocation hearing. At the beginning of that hearing, Calhoun admitted he
violated the terms of his sentence, specifically by new charges being filed against him on or about October 18, 2023 in Macon County, Illinois for Domestic Battery Bodily Harm, Domestic Battery Physical Contact and Resisting an Officer, and also consuming a controlled substance while under supervision as evidenced by a drug screen taken on February 19, 2024 which returned positive for THC.(Tr. Vol. II at 7.)
[¶5] On April 24, 2024, the trial court held a hearing to determine the sanction for Calhoun's probation violations. At the beginning of that hearing, the trial court and counsel discussed the amount of time Calhoun had remaining on his sentence:
COURT: And how much do you believe he has left on the sentence?
[State]: [Defense counsel] if you agree with what I gave you I show he has served as of today 150 days, with credit.
COURT: 150 even? [State]: . . . yes. So he would have 580 or 290 actual remaining.
COURT: So that's April 24th going on back how far?
[State]: He was incarcerated on February 17th of '24.
COURT: So 150 accrued credit days? Right? [State]: Yes. Yes.(Id. at 13) (original formatting omitted). During the hearing, Calhoun's probation officer, Lindsey Winger, testified that Calhoun had not completed the intermittent executed weekends portion of his probation, had not completed substance abuse treatment, and had been arrested for criminal offenses in Macon County, Illinois. Calhoun testified that he had received new criminal charges.
[¶6] On April 30, 2024, the trial court entered an order revoking Calhoun's probation. The order stated Calhoun violated probation when he consumed "MJ" while on probation, "committed [a] new offense[,]" and "failed to serve executed portion as ordered." (App. Vol. II at 35) (original formatting omitted). The trial court ordered Calhoun to serve 580 days incarcerated, with eight days of good time credit for pre-sanction incarceration from April 25 to April 28, 2024.
Discussion and Decision
[¶7] "'Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.'" Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The decision to offer probation and the related conditions are matters for the trial court to determine. Heaton, 984 N.E.2d at 616. Similarly, probation revocation is within the discretion of the trial court, and we review only for abuse of discretion. Id. Such an abuse occurs "where the decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law." Id. (internal citations omitted).
[¶8] Probation revocation is a two-step process. Trammel v. State, 45 N.E.3d 1212, 1215 (Ind.Ct.App. 2015). First, the State is required to prove, by a preponderance of the evidence, that the defendant violated the conditions of probation. Heaton, 984 N.E.2d at 615. Next, the trial court determines the sanction to impose for the violation. Trammel, 45 N.E.3d at 1215. "The violation of a single condition of probation is sufficient to revoke probation." Luke v. State, 51 N.E.3d 401, 421 (Ind.Ct.App. 2016), trans. denied. However, a trial court is not required to revoke probation, even if the probationer admits a violation. May v. State, 58 N.E.3d 204, 207 (Ind.Ct.App. 2016) ("Even in the face of a probation violation, the trial court may nonetheless exercise its discretion in deciding whether to revoke probation."). In the event of a probation violation, the court may choose to continue probation with or without modification, extend probation, or order execution of all or part of the original sentence. Ind. Code § 35-38-2-3(h). Probation violation sanctions are reviewed for abuse of discretion. Hammann v. State, 210 N.E.3d 823, 832 (Ind.Ct.App. 2023).
1. Violation of Probation
[¶9] Calhoun contends the State did not present sufficient evidence to support two of the three violations of probation found by the trial court in its revocation order. Calhoun argues the court erroneously found a violation when Calhoun "acquir[ed] new charges on October 18, 2023, in Macon County, Illinois in Case #23DV124 for Domestic Battery/Bodily Harm, Domestic Battery/Physical Contact, and Resisting an Officer" (App. Vol. II at 27), and when he failed to complete the intermittent incarceration as required by the trial court as a term of his probation. We address each argument in turn.
[¶10] As a condition of his probation, Calhoun was required to "not violate any law." (Id. at 22.) In its petition to revoke Calhoun's probation, the State alleged one of the probation rules Calhoun violated was the requirement that he "not violate any laws." (Id. at 27.) On October 28, 2023, Calhoun was charged with three crimes in Macon County, Illinois. However, Calhoun has not been convicted and still enjoys the presumption that he is innocent. See, e.g., Austill v. State, 745 N.E.2d 859, 862 (Ind.Ct.App. 2001) (noting there is a "constitutional presumption that a defendant is innocent until proven guilty"), trans. denied. During his probation revocation hearing and his sanction hearing, Calhoun admitted he had been charged with new offenses, but he did not admit that he committed those offenses. Nor did the State present any evidence about the alleged crimes, such that the trial court could have found by a preponderance of the evidence that Calhoun committed the crimes. Thus, the State did not prove Calhoun violated the law, and the trial court erred when it found Calhoun violated his probation based on Calhoun being charged with three crimes in Macon County, Illinois. See Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.Ct.App. 2014) (being arrested and charged, without more, is not evidence of a probation violation).
[¶11] The trial court also found Calhoun violated his probation when he "failed to serve [the] executed portion [of his sentence] as ordered." (App. Vol. II at 35.) However, neither petition to revoke alleged Calhoun violated his probation by not serving the sixty days of his sentence that he was to execute intermittently. The State's initial petition to revoke Calhoun's probation alleged he violated the law when he acquired the Macon County criminal charges, and its amended petition to revoke alleged Calhoun consumed marijuana. As the State did not notify Calhoun that it alleged he violated his probation by not serving the executed portion of his sentence, the trial court erred when it found Calhoun violated his probation on that basis. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (at a minimum, a probationer is afforded several due process protections prior to the revocation of his probation; the first is "written notice of the claimed violations of parole").
Nor was the requirement that Calhoun intermittently serve sixty days of his sentence listed as a condition of his probation. (See App. Vol. II at 22) (probation order).
[¶12] Even though the trial court erred when it found Calhoun violated his probation by being charged with crimes in Macon County, Illinois, and by failing to complete his sixty-day intermittently executed sentence, the court did properly find Calhoun violated his probation when he consumed marijuana because he tested positive for marijuana and admitted using marijuana. As a "violation of a single condition of probation is sufficient to revoke probation." Luke, 51 N.E.3d at 421, we proceed to addressing Calhoun's argument regarding the sanction for his probation violation.
2. Sanction for Violation
[¶13] Calhoun argues the trial court abused its discretion when it ordered him to serve 580 days of his suspended sentence incarcerated. Calhoun contends the order is an abuse of discretion because he was consistently employed, met weekly with his probation officer, and completed his community service as ordered. He also asserts 580 days "is an excessive sanction." (Br. of Appellant at 16.)
[¶14] However, Calhoun was on probation after resisting law enforcement and dealing in marijuana, and the trial court revoked his probation for consuming marijuana. The nexus between his crime and violation of probation suggests Calhoun will likely not achieve rehabilitation through probation and additional time on probation will likely not have the desired effect. Based thereon, we conclude the trial court did not abuse its discretion when it ordered Calhoun to execute 580 days of his suspended sentence. See, e.g., Knecht v. State, 85 N.E.3d 829, 840 (Ind.Ct.App. 2017) (trial court did not abuse its discretion when it ordered Knecht to serve the remainder of his sentence incarcerated because, in part, Knecht's probation violation was for committing a new crime that was the same crime for which he was on probation).
3. Credit Time
[¶15] Calhoun's final argument is that the trial court erroneously failed to give him credit for time served and time earned. The parties agreed at the dispositional hearing on April 24, 2024, that Calhoun had "150 accrued credit days[.]" (Tr. Vol. II at 13.) Calhoun argues the trial court's order revoking 580 days of his suspended sentence does not give him credit for those 150 days. We understand Calhoun's concern given the order's failure to mention the 150 days, but we disagree with his assertion that he did not receive credit for those days.
[¶16] Calhoun's original sentence was 730 days. (See App. Vol. II at 19.) The parties agreed he was entitled to 150 days of credit toward his sentence. The trial court's order indicated it was ordering Calhoun to serve 580 days, and the Abstract of Judgment indicates not just that Calhoun must execute 580 days, (id. at 36) ("Executed: 580 Days"), but also that his remaining sentence is 580 days. (Id.) ("Sentenced: 580 Days"). Further, the Abstract of Judgment indicates "N/A" for both "Suspended" and "Probation" (id.) - which indicates no time will remain on Calhoun's original 730-day sentence after Calhoun serves those 580 days. Thus, the trial court subtracted the 150 days of credit from Calhoun's original 730-day sentence to arrive at the 580 days that were imposed. Calhoun received all the days of credit that he had earned.
Conclusion
[¶17] The trial court erred when it found Calhoun violated his probation by committing a crime and by failing to complete the sixty-day executed portion of his sentence. However, the trial court properly revoked Calhoun's probation and ordered him to serve 580 days executed based on its finding that Calhoun violated his probation by consuming marijuana. The trial court also gave Calhoun credit for all the days Calhoun had served and earned toward his sentence. We accordingly affirm the trial court's revocation of Calhoun's probation.
[¶18] Affirmed.
Tavitas, J., and DeBoer, J., concur.