Opinion
23A-CR-3085
06-24-2024
Valdez Leshawn Reed, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Eric Grzegorski Howard County Public Defender Kokomo, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Howard Superior Court The Honorable Matthew J. Elkin, Judge Trial Court Cause No. 34D01-1001-FA-34
ATTORNEY FOR APPELLANT
Eric Grzegorski Howard County Public Defender Kokomo, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Valdez Leshawn Reed appeals the trial court's order that he serve 7,936 days of his previously-suspended sentence following the revocation of his placement. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[¶2] On January 12, 2010, the State charged Reed with Count I, dealing in cocaine as a class A felony; Count II, false informing as a class B misdemeanor; and Count III, visiting a common nuisance as a class B misdemeanor. A jury found Reed guilty as charged. On April 28, 2010, the court sentenced Reed to concurrent sentences of thirty years with ten years suspended for Count I, 180 days for Count II, and 180 days for Count III. The court stated that Reed had "jail time credit in the sum of one hundred-seven (107) actual days or two hundred fourteen (214) credit days, day for day credit, served while awaiting trial and disposition in this matter." Appellant's Appendix Volume II at 115. Reed appealed his convictions, and this Court affirmed. Reed v. State, 944 N.E.2d 580, 2011 WL 727985, at *1 (Ind.Ct.App. Mar. 2, 2011), trans. denied.
[¶3] On December 27, 2013, Reed filed a Motion for Modification of Sentence alleging he participated in and completed the PLUS Program, had been living in an honor dorm for the previous three years, had maintained a clear conduct record while incarcerated, planned to resume his career as a truck driver, had no prior history of criminal activity, and the crime was a result of circumstances that would not reoccur. On March 25, 2014, the court modified Reed's sentence to provide that he serve "the balance of the executed sentence on Supervised Probation, effective March 25, 2014." Appellant's Appendix Volume III at 10.
[¶4] On February 21, 2017, the State filed a petition to revoke Reed's suspended sentence alleging that he violated the terms of probation by: failing to report to the Probation Department on August 15, October 20 and 21, and December 19, 2016; and testing positive for marijuana. On April 25, 2017, the court entered an order finding that Reed admitted that he violated the terms of his probation, sentenced Reed to the Department of Correction ("DOC") "for 34 days of the previously suspended sentence, all executed," found that the executed portion of the sentence had been satisfied, ordered Reed returned to probation, and found that Reed had "jail time credit in the sum of 17 actual days or 34 credit days, day for day credit, served while awaiting disposition in this matter." Id. at 30.
[¶5] On August 23, 2018, the State filed a Petition to Revoke Suspended Sentence alleging that Reed violated the terms of his probation by testing positive for cocaine "from UDS collected" on June 30 and August 9, 2018, and failing to appear for drug testing on May 19, June 13 and 20, and July 4 and 5, 2018. Id. at 33. On July 22, 2019, the court entered an order issuing a warrant for Reed's arrest. The chronological case summary ("CCS") indicates that the warrant was served on July 22, 2019. On August 20, 2019, the court held a hearing. The CCS contains an August 20, 2019 entry indicating that the court ordered that probation be continued with the additional condition that Reed attend at least three Alcoholics Anonymous or Narcotics Anonymous meetings and that he be "remanded to Sheriff for release." Appellant's Appendix Volume II at 16.
[¶6] On April 25, 2023, the State filed a third Petition to Revoke Suspended Sentence alleging that "probation transferred back to the state of Michigan" on August 27, 2019, Reed's probation officer received a "Violation Report Requiring Retaking for the Probationer" on April 19, 2023, stating that Reed had absconded and his whereabouts were unknown. Appellant's Appendix Volume III at 99-100. On August 31, 2023, the court entered an order that found Reed admitted the allegations in the petition and sentenced him to "466 days of his previously suspended sentence executed, to be served on Work Release." Id. at 108. The court observed that Reed "has jail time credit as of 08/29/2023 in the sum of 46 actual days or 92 credit days, served while awaiting disposition in this matter." Id. The abstract of judgment dated September 14, 2023, listed a sentence of 466 days with 466 days on community corrections with 46 days of accrued time and 46 days of good time credit.
[¶7] On September 28, 2023, the State filed a Notice of Non-Compliance with Howard County Community Corrections Work Release Division alleging that Reed was "out of bounds" during leave on September 14, 22, and 24, 2023, and had failed to pay all fees and owed $943.50. Id. at 112. Specifically, the notice alleged in part:
On or about September 14, 2023[, Reed] had an approved pass for Texas Roadhouse for work. While reviewing [Reed's] tracks, this officer observed [Reed] out of bounds at dollar general in the
forest park plaza. This officer talked to [Reed] on or about September 15, 2023 about the incident. [Reed] stated he needed a backpack and though[t] it was okay to run really quick to the store to get one. This officer then explained again how passes at Work Release were conducted and what out of bounds meant. This officer sanctioned [Reed] by stating the GPS bracelet was going to stay on a month longer. This officer then randomly reviewed [Reed's] tracks on or about September 25, 2023 and observed through [Reed's] Courtfact profile that [Reed] was "out of bounds" at 1025 S Plate Street on or about September 24, 2023 from approximately 9:21am to 11:57am and at 1017 S Apperson Way (Sole City Kickz) on or about September 22, 2023 from approximately 2pm to 3:19pm. This shows [Reed] out of bounds for approximately 4 hours even after being sanctioned for the same act 9 days before showing [Reed] is not going to change his behavior.Id. at 112-113.
[¶8] On September 29, 2023, the court held a hearing at which it appointed a public defender for Reed. On October 10, 2023, the court held a hearing at which Reed indicated he wished to admit that he violated the terms of his probation and non-compliance with the Howard County Community Corrections Work Release Division. The court informed Reed of his rights, and Reed indicated that the allegations in the September 28, 2023 notice were true. Upon questioning by his counsel, Reed stated he was "standing at the Trolley stop," went to a shoe store to purchase insoles, walked to work a couple days later, and "[t]he dollar store incident" involved him carrying two trash bags with his work shoes and clothes, the bags were "tearing up," and he purchased a bookbag from the dollar store "directly across the street from the Saint John the [sic] hospital that's right there on Sycamore and and and well I don't know the name of that street." Transcript Volume II at 17. The court stated:
Michigan didn't want you back. That's why they mandated we pick you up. You've completed approximately four actual years, which was eight years of a 30 year sentence. You've been cutting the edges off the orange rind as close as you possibly can and Michigan twice reported that you absconded, and they said they don't want to watch you anymore. Apparently you don't value your own freedom. You have just shy of 22 years hanging over your head and you walked into a fictional Dollar General store that doesn't exist. Wherever you thought you were in Kokomo. You were not there.Id. at 21.
[¶9] On October 16, 2023, the court entered an order finding that Reed admitted to the allegations, sentencing him to "the remainder of his previous entered sentence which the Court finds to be 7,936 days in the" DOC, and stating that Reed had "jail time credit as of 10/10/2023 in the sum of 41 actual days or 82 credit days, served while awaiting disposition in this matter." Appellant's Appendix Volume III at 115. On November 9, 2023, Reed filed a Motion to Correct Error[] alleging in part that the court erred in the credit time calculation and that, "[a]s of October 10th, 2023, [he] should have been awarded credit time in the amount of 3,322, leaving a balance of 7,618 days to serve." Id. at 122. On December 1, 2023, the State filed a response to Reed's motion and argued that the balance of Reed's sentence was 7,706 days. The court denied the motion.
The State asserted: "This includes 4056 days of the suspended jail sentence and 3650 days for the ten year suspended sentence. This number was reached by giving credit for 214 days before sentencing, 2848 days in prison, 34 days for the first violation, 56 days for the second violation and 92 days for the last violation." Appellant's Appendix Volume III at 127. On appeal, the State observes that Reed asserted in his motion to correct error that he could receive a maximum sentence of 7,618 days and the prosecutor said that the maximum sentence was 7,706 days. It further asserts that it "believes that the record does not support these calculations." Appellee's Brief at 11.
Discussion
[¶10] Reed argues that the trial court abused its discretion by imposing a fully executed sentence for technical violations including "three minor 'out of bounds' violations and owing work release fees." Appellant's Brief at 15. He asserts there were no new conditions of supervised probation filed after the August 31, 2023 order and the previously filed conditions of supervised probation did not make community corrections or work release a condition of probation. He contends that the September 28, 2023 Notice of Non-Compliance with Howard County Community Corrections Work Release Division did not allege that he violated the conditions of his probation. He also argues that the trial court committed a credit time calculation error. Specifically, he contends that the "correct sentence . . . should have been 7,698 days executed with credit for 41 actual or 82 credit days, served while awaiting disposition in this matter." Id. at 20.
[¶11] The State argues that the record supports the trial court's decision to revoke Reed's entire previously-suspended sentence. It acknowledges that the trial court could impose only a sanction of up to 7,705 days. It submits that remand is appropriate for the trial court to enter an order imposing a sanction of 7,705 days and awarding day-for-day credit time of 82 days against that time, plus any further credit time that would have accrued by the date of the trial court's order.
It appears that the seven-day difference between Reed's assertion that the "correct sentence . . . should have been 7,698 days executed with credit for 41 actual or 82 credit days, served while awaiting disposition in this matter," Appellant's Brief at 20, and the State's assertion that "remand is appropriate for the trial court to enter an order imposing a sanction of 7,705 days and awarding day-for-day credit time of 82 days against that time, plus any further credit time that would have accrued by the date of the trial court's order," Appellee's Brief at 12, is that the State accounted for additional days in leap years as it states that "[t]hirty years from April 28, 2010, was 10,957 days, which includes seven leap days." Id. at 11. Reed did not file a reply brief to counter the State's assertion that additional days should be included to account for leap years.
[¶12] For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. Both probation and community corrections programs serve as alternatives to commitment to the DOC and both are at the sole discretion of the trial court. Id. Placement on probation or in a community corrections program is a matter of grace and not a right. Id.; see State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) ("The similarities between the two programs have led to common treatment in appellate review of a trial court's decision to revoke either ...."). Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. Cox, 706 N.E.2d at 551. The State need only prove the alleged violations by a preponderance of the evidence, we will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses, and if there is substantial evidence of probative value to support the court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id. "Proof of a single violation of the conditions of a defendant's probation is sufficient to support a trial court's decision to revoke probation." Hubbard v. State, 683 N.E.2d 618, 622 (Ind.Ct.App. 1997).
[¶13] The Indiana Supreme Court has held that a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The Court 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." Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶14] The record reveals that, after the court modified Reed's sentence in 2014 to supervised probation, Reed violated the terms of his probation by failing to report to the Probation Department and testing positive for marijuana in 2016. After the State filed a second petition in 2018 to revoke his suspended sentence, the court continued probation with the additional condition that he attend at least three Alcoholics Anonymous or Narcotics Anonymous meetings. In August 2023, Reed again admitted to violating his probation. To the extent Reed argues there were no new conditions of probation filed after the August 31, 2023 order and the previously filed conditions of probation did not make community corrections or work release a condition of probation, we note that the court's August 31, 2023 order responding to the State's third petition sentenced Reed to serve 466 days of his previously-suspended sentence on work release. In light of Reed's repeated violations and the multiple opportunities he has been given, we cannot say that the trial court abused its discretion in revoking his suspended sentence.
To the extent Reed asserts that "[n]othing occurred at the hearing to allege that Reed did not go to a Dollar General store, yet the court hands down an incredibly punitive sentence for what it deems a store 'that doesn't exist,'" Appellant's Brief at 15, we cannot say that the trial court's comment warrants reversal.
[¶15] With respect to Reed's argument regarding the calculation of credit time, "[u]nder the Indiana Penal Code, prisoners receive credit time that is applied to reduce their term of imprisonment." Robinson v. State, 805 N.E.2d 783, 789 (Ind. 2004). The time spent in confinement before sentencing applies toward a prisoner's fixed term of imprisonment. Id. The amount of additional credit or good time credit is primarily determined by the prisoner's credit time classification. Id. Ind. Code § 35-38-3-2 requires that the judgment of conviction must include the amount of credit, including credit time earned, for time spent in confinement before sentencing. The Indiana Supreme Court has interpreted Ind. Code § 35-38-3-2 "to require that a trial court's judgment of conviction separately include both the amount of time spent by the defendant prior to imposition of sentence and also the amount of credit time earned in accordance with the defendant's credit time class." Id. "Sentencing judgments that report only days spent in pre-sentence confinement and fail to expressly designate credit time earned shall be understood by courts and by the [DOC] automatically to award the number of credit time days equal to the number of pre-sentence confinement days." Id. at 792. "In the event of any pre-sentence deprivation of credit time, the trial court must report it in the sentencing judgment." Id.
[¶16] The April 28, 2010 sentencing order stated that Reed had "jail time credit in the sum of one hundred-seven (107) actual days or two hundred fourteen (214) credit days, day for day credit, served while awaiting trial and disposition in this matter." Appellant's Appendix Volume II at 115. On March 25, 2014, the trial court modified Reed's sentence to provide that he serve "the balance of the executed sentence on Supervised Probation, effective March 25, 2014." Appellant's Appendix Volume III at 10. Both parties agree that the period of time between April 28, 2010, and March 25, 2014, amounted to 1,427 actual days or 2,854 total credit days. This amounted to cumulative total credit days of 3,068 days. The court's April 25, 2017 order finding that Reed violated his probation sentenced him to the DOC "for 34 days of the previously suspended sentence, all executed," and found that he had "jail time credit in the sum of 17 actual days or 34 credit days, day for day credit, served while awaiting disposition in this matter." Id. at 30. Both parties agree that this amounted to 34 total credit days. This amounted to cumulative total credit days of 3,102 days. Both parties agree that the time period between July 22, 2019, when an arrest warrant was served, and August 20, 2019, when the court ordered Reed released on probation, resulted in 58 total credit days. This amounted to cumulative total credit days of 3,160 days. The court's August 31, 2023 order sentenced Reed to "466 days of his previously suspended sentence executed, to be served on Work Release" and stated that Reed "has jail time credit as of 08/29/2023 in the sum of 46 actual days or 92 credit days, served while awaiting disposition in this matter." Id. at 108. The parties agree that this resulted in 92 total credit days. This amounted to cumulative total credit days of 3,252 days. In its October 16, 2023 order, the court sentenced Reed to "the remainder of his previous entered sentence which the Court finds to be 7,936 days in the" DOC and stated that Reed had "jail time credit as of 10/10/2023 in the sum of 41 actual days or 82 credit days, served while awaiting disposition in this matter." Id. at 115.
[¶17] The trial court's April 28, 2010 order sentenced Reed to thirty years with ten years suspended for Count I. Adding thirty years to April 28, 2010, would result in a date of April 28, 2040. The period amounts to 10,958 days, which includes eight days for leap years. Subtracting 3,252 days of cumulative total credit days (and excluding the 82 credit days mentioned in the October 16, 2023 order) from the thirty-year sentence or 10,958 days results in 7,706 days. In light of the parties' agreements regarding the multiple credit time calculations, we conclude that the trial court erred in its October 16, 2023 order when it sentenced Reed to "the remainder of his previous entered sentence which the Court finds to be 7,936 days in the" DOC. Id. at 115. Accordingly, we reverse the trial court's order to the extent it incorrectly calculated the remainder of Reed's previously-suspended sentence and remand for calculation of any applicable credit time.
The leap years include 2012, 2016, 2020, 2024, 2028, 2032, 2036, and 2040.
[¶18] For the foregoing reasons, we affirm the trial court's order revoking Reed's placement and order that he serve his previously-suspended sentence. We remand for a calculation of the number of days of Reed's previously-suspended sentence and any applicable credit time.
[¶19] Affirmed in part, reversed in part, and remanded.
May, J., and Pyle, J., concur.