MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision Sep 09 2015, 8:31 am
shall not be regarded as precedent or
cited before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kasey Hutchins, September 9, 2015
Appellant-Defendant, Court of Appeals Case No.
34A04-1503-CR-133
v. Appeal from the Howard Superior
Court;
State of Indiana, The Honorable William C.
Menges, Judge;
Appellee-Plaintiff. 34D01-1207-FB-714
May, Judge.
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[1] Kasey Hutchins appeals the revocation of his probation. He alleges the court
abused its discretion by imposing the balance of his suspended sentence and
erred in calculating the length of time that remained on his sentence. We affirm
in part, reverse in part, and remand.
Facts and Procedural History
[2] In August 2012, the State charged Hutchins with Class B felony dealing in a
controlled substance 1 after he helped a confidential informant obtain Saboxone.
Hutchins entered a plea of guilty pursuant to an agreement that capped his
sentence at fifteen years. The court imposed a fifteen-year sentence to be served
consecutive to a sentence from another cause, and it gave Hutchins credit for
“155 actual days or 310 credit days, day for day credit, served while awaiting
trial and disposition in this matter.” (Appellant’s App. at 34.) It reserved the
right to modify Hutchins’ sentence if he completed a therapeutic community
program while in the custody of the Department of Correction (DOC).
[3] In November 2013, Hutchins petitioned for sentence modification. He told the
court he had completed a therapeutic community program and asked that the
court suspend the remainder of his sentence. On December 19, 2013, the court
did so and ordered Hutchins to serve the remaining time on “supervised
probation.” (Id. at 50.) Hutchins was to report immediately upon release to
Community Corrections. (Id.) As a condition of his probation, Hutchins was
1
Ind. Code § 35-48-4-2(a)(1) (2011).
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required to “successfully complete, and make satisfactory arrangements to pay
for, the Howard County Re-entry Program.” (Id.)
[4] On October 2, 2014, the State petitioned to revoke Hutchins’ suspended
sentence because he was terminated from the Re-entry Program. Hutchins
admitted violating the terms of his probation. The State and Hutchins
recommended 2 the court impose the following punishment for the probation
violation: “[Hutchins’] suspended sentence shall be executed as follows: Three
(3) years in the Indiana Department of Corrections [sic] with the remainder on
Community Corrections In-Home Detention.” (Id. at 64.)
[5] Thereafter, the Probation Department recommended Hutchins “serve the entire
suspended sentence in the Department of Corrections [sic], all of which shall be
executed.” (Id. at 65.) The Probation Department so recommended because
Hutchins “was given the chance to prove to the Court that he was able to follow
rules and change his criminal thinking. However, he has failed to do so.” (Id.)
The County Transition Program agreed with the Probation Department’s
recommendation. (Id. at 67.)
[6] At the conclusion of the revocation hearing the court said, in pertinent part:
I see absolutely no reason to impose a sentence in connection
with this case that is less what he received in 2007. Particularly
2
The Recommendation, which was signed by Hutchins, his counsel, and the deputy prosecutor,
acknowledged “this is just a recommendation for the Court and the Court is not bound by this
recommendation.” (App. at 64.)
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since he was offered the advantage of dealing with the re-entry
program and all the benefits that successful completion of that
would have brought with it, and the other issue that I have is that
his failure in the re-entry program did not occur early in that
program but it occurred after a relatively long period of time that
involves behavior that he should have progressed through well
before [he] committed the violation. Accordingly, I’m going to
order the balance of the defendant’s sentence executed. He is
obviously entitled to some credit time. I do not have access to
how much time he has served during the period of time that he
was on re-entry as a result of sanctions. Accordingly, I will
calculate the credit time and put that in the sentencing order. I
will give you the right, [Hutchins’ counsel], to object to my
calculation and you can have a hearing on that so we’re not
going to be bound, necessarily bound by the earlier determined
sentence.
[7] (Tr. at 21-22.) Then, in the written sentencing order, the court sentenced
Hutchins “to the Indiana Department of Correction for the balance of the
previously suspended sentence, with [sic] the Court finds to be 4419 days.”
(Appellant’s App. at 69.) The court also gave “jail time credit in the sum of 125
actual days or 250 credit days, day for day credit, served while awaiting
disposition in this matter.” (Id.)
Discussion and Decision
[8] We first note the State has not filed a brief. When an appellee does not file a
brief, we are not required to develop an argument on that party’s behalf. State v.
Gilbert, 997 N.E.2d 414, 416 n.1 (Ind. Ct. App. 2013). Instead we “may reverse
the trial court’s decision if the appellant establishes prima facie error—that is,
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error ‘at first sight, on first appearance, or on the face of it.’” Id. (citation
omitted).
[9] Hutchins argues the court abused its discretion by revoking all the suspended
time that remained on his sentence.
Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. It is within the
discretion of the trial court to determine probation conditions
and to revoke probation if the conditions are violated. In appeals
from trial court probation violation determinations and
sanctions, we review for abuse of discretion. An abuse of
discretion occurs where the decision is clearly against the logic
and effect of the facts and circumstances, or when the trial court
misinterprets the law.
Probation revocation is a two-step process. First, the trial court
must make a factual determination that a violation of a condition
of probation actually occurred. Second, if a violation is found,
then the trial court must determine the appropriate sanctions for
the violation.
[10] Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (internal citations and
quotations omitted). The selection of an appropriate sanction for violation
depends on the severity of the probation violation. Id. at 618. On review, “we
consider only the evidence most favorable to the judgment without reweighing
that evidence or judging the credibility of the witnesses.” Woods v. State, 892
N.E.2d 637, 639 (Ind. 2008).
[11] Hutchins and the State agreed to recommend the court impose only three years
in the Department of Correction, with the remainder of his time to be served
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through Community Corrections on in-home detention. However, the
Probation Department and Transitions Program both disagreed with that
suggestion.
[12] Hutchins points to his “success” since being released from the DOC,
(Appellant’s Br. at 9), but most of the information on which he relies to
demonstrate his success comes from the “unsworn statement” Hutchins read to
the court after the close of evidence. (Tr. at 18.) Unsworn statements are not
“evidence” on which a court may base a judgment. See Smith v. State, 471
N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984) (deputy prosecutor’s unsworn
statement of medical expenses is insufficient to support restitution order), reh’g
denied, trans. denied.
[13] At the hearing on the State’s petition to revoke Hutchins’ suspended sentence,
the court explained that it saw “absolutely no reason” to impose a shorter
sentence, (Tr. at 21), because Hutchins already had been “offered the advantage
of dealing with the re-entry program and all of the benefits that successful
completion of that would have brought with it,” (id.), and his failure in that
program had “occurred after a relatively long period of time,” (id.), and
“involve[d] behavior that he should have progressed through well before [he]
committed the violation.” (Id. at 22.) In light of the court’s explanation, we
find no abuse of discretion in the court’s decision to order Hutchins to serve the
remainder of his suspended sentence.
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[14] Finally, Hutchins asserts the court miscalculated the amount of credit time to be
applied against his sentence. The only discussion of this matter at the hearing
was the court’s pronouncement that it did not have the information before it so
the court would calculate the credit time after the hearing. The court entered an
order that provided the “balance of the previously suspended sentence . . . to be
4419 days.” (Appellant’s App. at 69.) The court also found Hutchins had “125
actual days or 250 credit days” served while awaiting disposition of the
probation revocation. (Id.)
[15] Hutchins outlines the days to which he believes he is entitled, and he supports
his argument with citations to the record that support his being incarcerated
many of the additional dates he asserts he was incarcerated. (See Appellant’s
Br. at 10-11.) However, when the court originally imposed his sentence on
January 2, 2013, the court ordered it “served consecutively to the sentence
imposed in cause number 34D01-0606-FA-422.” (Appellant’s App. at 34.) As
we have not been directed to evidence of when Hutchins was released from that
other sentence to begin serving the sentence herein, we cannot determine the
number of days to which Hutchins is entitled. Accordingly, we must reverse
the court’s finding and remand for a hearing to determine the time remaining
on Hutchins’ sentence.
Conclusion
[16] The court did not abuse its discretion when it revoked all of the time remaining
on Hutchins’ suspended sentence. However, on the record before us, we
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cannot determine whether Hutchins received the credit time to which he was
entitled. We accordingly affirm in part, reverse in part, and remand.
[17] Affirmed in part, reversed in part, and remanded.
Crone, J., and Bradford, J., concur.
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Kasey Hutchings v. State of Indiana (mem. dec.)
Combined Opinion