FILED
Jul 29 2016, 8:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony A. May, July 29, 2016
Appellant-Defendant, Court of Appeals Case No.
35A04-1603-CR-673
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey R.
Appellee-Plaintiff. Heffelfinger, Judge
Trial Court Cause No.
35D01-1012-FC-303
Vaidik, Chief Judge.
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Case Summary
[1] Indiana Code section 35-50-6-1 provides that when defendants complete their
terms of imprisonment, they are released to parole or probation. Here, when
Anthony A. May violated his probation, the trial court sentenced him to serve
two years of his previously suspended sentence in the Indiana Department of
Correction and ordered him to return to probation when he completed his
sentence. When May later completed his sentence, the DOC released him to
parole instead of probation. Although May complied with the terms of his
parole, the probation department filed a petition to revoke his probation
because he failed to submit to monthly drug tests (which was a condition of his
probation but not his parole). The trial court found that May violated his
probation and sentenced him to serve the balance of his previously suspended
sentence in the DOC.
[2] Because the trial court ordered May to return to probation when he completed
his sentence and May concedes that he was ordered to return to probation, we
find that May was, in fact, on probation when he was released from the DOC
and therefore violated it by failing to submit to monthly drug tests. But May’s
violation does not warrant revocation. Given that defendants are placed on
parole or probation, the DOC placed May on parole, and May complied with
the terms of his parole, it was reasonable for May not to report to probation
before his release from parole. Accordingly, we find that the trial court abused
its discretion in revoking May’s probation and sentencing him to serve the
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balance of his previously suspended sentence in the DOC. We therefore reverse
the trial court and remand with instructions for May to return to probation.
Facts and Procedural History
[3] In 2011, May was convicted of Class C felony nonsupport of a dependent child
in Huntington Superior Court. The trial court sentenced him to eight years,
with four years executed in the DOC and four years suspended to probation.
May’s probation included the following condition:
Appellant’s App. p. 44.1
[4] In 2014, the probation department filed a petition to revoke May’s probation for
failing to pay child support and to submit to monthly drug tests. May admitted
that he violated his probation, and the trial court sentenced him to serve two
years of his previously suspended sentence in the DOC. The trial court ordered
that “[a]ll other terms of probation remain.” Id. at 89. And May admitted that
the trial court told him that he would still be on probation when he completed
his two-year sentence for violating his probation. Tr. p. 56.
1
Although the conditions of May’s parole did not include monthly drug tests, they prohibited him from
being intoxicated and from using, possessing, or trafficking in a controlled substance. Ex. A.
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[5] May was released from the DOC to parole in February 2015. See Ex. A
(Conditional Parole Release Agreement); Tr. p. 48. May then reported on a
weekly basis to his parole officer in Allen County. May took a drug test
through his parole officer in March 2015, and it was negative. May, however,
did not report to his probation officer when he was released from the DOC.
Consequently, he did not take any drug tests through the probation department.
[6] In May 2015, the probation department filed a second petition to revoke May’s
probation for “fail[ing] to submit to any monthly drug tests since being released
from Indiana Department of Correction[] on or about February 11, 2015.”2
Appellant’s App. p. 102. At the probation-revocation hearing, May testified
that when he was released from the DOC to parole in February 2015, the DOC
told him that he was on parole, not probation.3 Noting that parole was a
function of the executive branch and therefore had no effect on the terms of
May’s probation, the trial court found that May violated his probation for
failing to submit to monthly drug tests and sentenced him to serve the balance
of his previously suspended sentence in the DOC.4
2
The State also alleged that May violated his probation for failing to pay child support, but the trial court did
not find that May violated his probation for this reason. See Tr. p. 65. Therefore, we address only May’s
failure to submit to monthly drug tests.
3
The State objected to some of May’s testimony on this point on hearsay grounds, and the trial court
sustained the objection. Nevertheless, both parties mention in their appellate briefs that May claimed the
DOC told him that he was being released to parole, not probation.
4
The trial court’s order actually provides that May must serve the “balance of [his] original sentence.”
Appellant’s App. p. 107, 108 (abstract of judgment showing that May was sentenced to eight years,
minus credit for the time he had already served). However, when a defendant is found to have violated
probation, the court may “[o]rder execution of all or part of the sentence that was suspended at the time
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[7] May now appeals.
Discussion and Decision
[8] May contends that the trial court abused its discretion in finding that he
violated his probation for failing to submit to monthly drug tests and in
revoking his probation and sentencing him to serve the balance of his previously
suspended sentence in the DOC.
[9] Probation revocation is a two-step process. First, the trial court must determine
that a violation of a condition of probation actually occurred. Woods v. State,
892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is proven, then the trial
court must decide whether the violation warrants revocation of probation. Id.
If the trial court finds that the probationer violated a condition of probation, the
court has several options:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
of initial sentencing.” Ind. Code § 35-38-2-3(h) (emphasis added). Four years were suspended at the
time of May’s initial sentencing. Nevertheless, because we conclude that the trial court abused its
discretion in revoking May’s probation, we do not need to address this issue any further.
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Ind. Code § 35-38-2-3(h).
[10] May first argues that he did not violate his probation because when he was
released from the DOC in February 2015, the DOC told him that he was on
parole, not probation. Indiana Code § 35-50-6-1 provides that when a
defendant completes his term of imprisonment, he can be released in one of
three ways:
(a) Except as provided in subsection (d) or (e), when a person
imprisoned for a felony completes the person’s fixed term of
imprisonment, less the credit time the person has earned with
respect to that term, the person shall be:
(1) released to parole . . .;
(2) discharged upon a finding by the committing court that
the person was assigned to a community transition
program and may be discharged without the requirement
of parole; or
(3) released to the committing court if the sentence
included a period of probation.
(Emphasis added).
[11] Here, the trial court specifically ordered May to return to probation when he
completed his two-year sentence. And May admits that he was ordered to
return to probation. Accordingly, when May was released from the DOC in
February 2015, he was on probation. May therefore violated his probation by
failing to submit to monthly drug tests.
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[12] But this does not mean that May’s probation should have been revoked. Even
in the face of a probation violation, the trial court may nonetheless exercise its
discretion in deciding whether to revoke probation. Woods, 892 N.E.2d at 641.
For example, lack of volition is a factor for the trial court to consider when
deciding whether to revoke probation. Id. (giving as example a probationer not
reporting to his probation officer because he was in a coma in a hospital);
Sullivan v. State, No. 16A01-1512-CR-2175, 2016 WL 3639909 (Ind. Ct. App.
July 8, 2016) (concluding that the trial court abused its discretion in revoking
the defendant’s community-corrections placement for failing to report to start
home detention because the defendant was in a mental-health hospital on the
day he was to report).
[13] When defendants complete their terms of imprisonment, they are released to
parole or probation. See Ind. Code § 35-50-6-1. When May was released from
the DOC in February 2015, the DOC placed him on parole under a Conditional
Parole Release Agreement. He saw his parole officer every week, took a drug
test (which was negative), and was successfully discharged from parole in
December 2015. Given that defendants are placed on parole or probation, the
DOC placed May on parole and told him that he was not on probation, and
May complied with the terms of his parole, it was reasonable for May not to
report to probation before his release from parole. See Tr. p. 63 (May’s trial
counsel explaining that she had never seen someone released to parole “when
the Court’s Order states that you are to be released on probation”). Under these
circumstances, we find that the trial court abused its discretion in revoking
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May’s probation and sentencing him to serve the balance of his previously
suspended sentence in the DOC. We therefore reverse the trial court and
remand with instructions for May to return to probation. See I.C. § 35-38-2-
3(h).
[14] Reversed and remanded.
Barnes, J., and Mathias, J., concur.
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