Opinion
24A-CR-703
08-30-2024
Sherman Joe Jackson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Offices Logansport, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Mark K. Dudley, Judge Trial Court Cause No. 48C06-1305-FB-1011
ATTORNEY FOR APPELLANT
Mark K. Leeman Leeman Law Offices Logansport, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Sherman Joe Jackson appeals the revocation of his probation. He argues that the trial court committed reversible error in revoking his probation because he was no longer on probation when he committed the alleged violations. We affirm.
Facts and Procedural History
[¶2] On June 29, 2015, Jackson pled guilty, pursuant to a plea agreement, to five felony charges in exchange for dismissal of five additional felony charges and an aggregate executed sentencing cap of twelve years. Specifically, he pled guilty to aiding, inducing, or causing dealing in methamphetamine as a class B felony and maintaining a common nuisance, auto theft, unlawful possession of a syringe, and neglect of a dependent as class D felonies. On July 27, 2015, the trial court imposed concurrent terms of fifteen years with five years suspended to probation on the class B felony conviction, and three years on each of the class D felony convictions.
The court further ordered that Jackson's sentence be served consecutive to the sentences in cases out of Tipton and Howard Counties, and a third sentence out of St. Clair County, Illinois.
[¶3] On July 8, 2021, the State filed a notice of probation violation alleging that Jackson had committed a new offense of theft as a level 6 felony in Howard County and that he had failed to submit to a required drug screen. The court held an evidentiary hearing on January 14, 2022, during which Jackson admitted to violating his probation by failing to submit to the required drug screen, and the trial court found that he violated his probation by committing the new offense. On the same date, the court entered the following sanction for the probation violation: "Two (2) years of defendant's previously suspended sentence is now ordered revoked to Home Detention." Appellant's Appendix Volume III at 16. Jackson successfully served and completed his home detention on June 1, 2023, and the court transferred his probation to Miami County on July 27, 2023.
[¶4] In November 2023, the State filed a notice of probation violation alleging that Jackson failed to submit to two required drug screens to the Miami County Probation Department on October 27 and 30, 2023. In January 2024, the State filed an amended notice of probation violation alleging that Jackson committed numerous new offenses including criminal mischief, auto theft, and multiple drug offenses in Miami County, and auto theft and residential entry in Carroll County.
[¶5] The court held an evidentiary hearing on February 23, 2024. After the State presented its evidence, Jackson conceded the State had presented sufficient evidence that he committed the Miami County auto theft and the Carroll County residential entry. The court found that Jackson violated his probation by failing to submit to the required drug screens and in committing the new offenses of auto theft and residential entry. That same date, the court entered a sanction order revoking the remaining three years of Jackson's previously suspended sentence and ordering those years executed in the Department of Correction ("DOC"). The court's order provided, "[t]he defendant is done with the case once time is served in the DOC." Id. at 146.
As noted by the State, the record reveals that the same trial judge presided over the original sentencing and both revocation proceedings.
Discussion
[¶6] Jackson's sole assertion on appeal is that the trial court committed reversible error because he was no longer on probation when the trial court purported to revoke his probation and sanction him on February 23, 2024. He asserts that his sentence "terminated on June 1, 2023, when he successfully completed home detention" and therefore, "there was no suspended sentence to revoke" when the State filed revocation petitions in late 2023 and early 2024. Appellant's Brief at 7.
[¶7] As a general matter, we review trial court probation violation determinations and sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court has explained that, "[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed" and that, "[i]f 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." Prewitt, 878 N.E.2d at 188.
[¶8] We need not reach the merits of Jackson's claim because we agree with the State that Jackson has waived his appellate argument for two reasons. First, Jackson failed to argue to the trial court that his probationary term had already ended when he appeared to answer for the current violations. Indeed, his counsel conceded during the revocation hearing that the State had proven two of the violations "to the standard that is required by the court[,]" Transcript Volume II at 77, and at no point did counsel suggest that Jackson was no longer on probation when he committed those violations. An appellant may not raise issues for the first time on appeal, and the failure to raise an issue before the trial court results in waiver of the issue for our consideration. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (finding defendant's claim raised for the first time on appeal to be waived and observing that declining to review a waived issue is a cardinal principle of sound judicial administration).
[¶9] Second, to the extent that Jackson attempts to avoid waiver by asserting fundamental error and focusing his argument upon his self-serving "interpretation" of the trial court's sanction following his 2021 probation violation, he has waived this claim for failing to present us with an adequate record for appellate review. It is well established that "it is the appellant's burden to provide us with an adequate record to permit meaningful appellate review," and failure to do so results in waiver of the argument. Martinez v. State, 82 N.E.3d 261, 263 (Ind.Ct.App. 2017), trans. denied. Jackson has not provided us with a transcript of the revocation hearing held on January 14, 2022, so we are unable to discern if the trial court intended, as he suggests, for his probation to terminate upon successful completion of home detention. The actual language of the court's 2022 sanction order belies his claim, and we must decline his invitation to speculate as to the court's intention absent evidentiary support. In sum, Jackson has waived our review of his appellate claims.
[¶10] Waiver notwithstanding, the record supports that in July 2023, at Jackson's request, the court transferred his probation to Miami County, and he was reporting to probation there when he twice failed to submit to required drug screens in October 2023. The evidence presented at the evidentiary hearing on these bases alone was enough to support the revocation of his probation.
[¶11] For the foregoing reasons, we affirm the judgment of the trial court.
[¶12] Affirmed.
May, J., and Pyle, J., concur.