MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Sep 20 2016, 8:50 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Gregory F. Zoeller
Bargersville, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse E. Kaufman, September 20, 2016
Appellant-Defendant, Court of Appeals Case No.
20A04-1601-CR-131
v. Appeal from the
Elkhart Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Teresa L. Cataldo, Judge
Trial Court Cause No.
20D03-0801-FC-8
Kirsch, Judge.
[1] Jesse E. Kaufman (“Kaufman”) appeals the trial court’s order revoking his
probation and imposing his previously-suspended sentence. He raises the
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following issue, which we restate as: whether the trial court erred in denying
his motion to dismiss the State’s petition to revoke his probation and in
revoking his probation.
[2] We affirm.
Facts and Procedural History
[3] On April 29, 2008, Kaufman pleaded guilty to two counts of sexual misconduct
with a minor, each as a Class C felony. On July 18, 2008, the trial court
sentenced him to eight years on each count, with the sentences to run
consecutively, and the eight-year sentence on Count II to be suspended to
probation. The trial court informed Kaufman of the various terms and
conditions of his probation, including that he not have contact with any person
under the age of eighteen, that he not leave Elkhart County without approval of
his probation officer, and that he enroll in and successfully complete sex
offender therapy.
[4] In early July 2011, the Indiana Department of Correction put Kaufman on
parole. On July 5, 2011, Kaufman met with his probation officer, Melanie
Godden (“Godden”), who reviewed Kaufman’s terms of probation with him.
One of the terms stated, “You must never be alone with or have contact with
any person under the age of 18. Contact includes face-to-face, telephonic,
written, electronic, or any indirect contact via third parties. . . .” Appellant’s
App. at 82. It was also reiterated that Kaufman was ordered to attend and
successfully complete a sex offender treatment program and not to leave
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Elkhart County without approval from his probation officer. After the terms
were explained to him, Kaufman signed them.
[5] On February 4, 2013, Kaufman requested that the trial court modify the terms
of his probation because, since his release from incarceration, he had married
and had a baby girl, and he sought to live with them. On the same date, the
probation department asked the trial court to allow Kaufman to leave Elkhart
County so that he could attend a therapy program. The trial court granted the
probation department’s request, but set Kaufman’s motion for a hearing, which
was continued several times. On July 16, 2013, the probation department filed
a notice of probation violation due to Kaufman allegedly attempting to record a
sex offender group counseling session, which was in violation of the program’s
rules. He was later found to have violated the terms of his probation, and as a
sanction, the trial court ordered that Kaufman continue on probation as
previously ordered.
[6] On January 29, 2015, the probation department filed another petition alleging
that Kaufman had violated the terms of his probation. At a hearing in April
2015, Kaufman orally moved to dismiss the petition to revoke his probation.
The trial court directed Kaufman to file a written motion to dismiss. On May
21, 2015, Kaufman filed a motion, alleging that: (1) the probation department
lacked jurisdiction over him because he was under exclusive jurisdiction of the
parole board until his eight-year executed sentence was completed; and (2) he
would be subjected to double jeopardy by being charged with the same
allegation by the parole board and the probation department. Appellant’s App. at
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177-79. As support for his contention of lack of jurisdiction, Kaufman attached
a letter from Godden in October 2014, informing him that he would not resume
reporting probation until after he had completed his parole term and did not
have to have appointments with Godden until he was released from parole. Id.
at 181. Kaufman’s motion to dismiss the petition to revoke his probation was
denied by the trial court.
[7] An evidentiary hearing was held on the petition to revoke Kaufman’s
probation. During the hearing, evidence was presented that the police had been
notified that Kaufman had been harassing a seventeen-year-old girl by coming
to the store where she worked. He had initiated a conversation with her and
exchanged telephone numbers with her. Through several telephone calls and
messages, Kaufman made sexual advances to the girl, and even when the girl
distanced herself from him, he continued to visit the store where she worked.
The trial court found that Kaufman had violated the terms of his probation and
revoked the balance of his suspended sentence. Kaufman now appeals.
Discussion and Decision
[8] Probation is a matter of grace left to a trial court’s discretion, not a right to
which a criminal defendant is entitled. McCauley v. State, 22 N.E.3d 743, 746
(Ind. Ct. App. 2014), trans. denied. “Once a court has exercised its grace by
ordering probation rather than incarceration, the judge has considerable leeway
in deciding how to proceed.” Id. at 746-47 (citing Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007)). It is therefore within the discretion of the trial court to
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determine probation conditions and to revoke probation if the conditions are
violated. Id. at 747. Accordingly, a trial court’s determinations on probation
violations and sanctions are subject to review for abuse of discretion. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). We also review a trial court’s denial of
a motion to dismiss for an abuse of discretion. Lebo v. State, 977 N.E.2d 1031,
1035 (Ind. Ct. App. 2012). An abuse of discretion occurs where the decision is
clearly against the logic and effects of the facts and circumstances before the
court or when the trial court misinterprets the law. Heaton, 984 N.E.2d at 616.
[9] Kaufman argues that the trial court erred in denying his motion to dismiss the
petition to revoke his probation and in revoking his probation. He asserts that
he had a due process right to be notified that his probation could be revoked for
a violation of the conditions of his probation during his second release on
parole. Kaufman contends that he received mixed messages about whether his
probation could be revoked during this time and at the time he had contact with
the seventeen-year-old girl, and thus, he did not have proper notice of his
probation status, which was a violation of his due process rights. Due to this
lack of notice, Kaufman claims that it was fundamental error to both deny his
motion to dismiss and to revoke his probation.
[10] In the present case, Kaufman filed his motion to dismiss, alleging that the
petition to revoke his probation should be dismissed because the probation
department lacked jurisdiction over him as he was under exclusive jurisdiction
of the parole board until his eight-year executed sentence was completed and he
would be subjected to double jeopardy by being charged with the same
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allegation by the parole board and the probation department. Appellant’s App. at
177-79. However, he did not raise the argument that his due process rights
were violated because he lacked notice that he was under a probationary period
when he committed his violations in 2015; he raises this issue for the first time
on appeal before this court. A defendant is limited to the grounds advanced at
trial and may not raise a new ground for objection for the first time on appeal.
King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App. 2003) (citing Jackson v. State, 712
N.E.2d 986, 988 (Ind. 1999)), trans. denied, cert. denied, 543 U.S. 817 (2004).
Kaufman attempts to avoid waiver by claiming that the trial court committed
fundamental error. The fundamental error doctrine is an exception to the
general rule that the failure to object at trial constitutes a procedural default
precluding consideration of an issue on appeal. Jewell v. State, 887 N.E.2d 939,
940 n.1 (Ind. 2008). The fundamental error exception to the waiver rule is an
extremely narrow one. Munford v. State, 923 N.E.2d 11, 13 (Ind. Ct. App.
2010). It “applies ‘only when the record reveals a clearly blatant violation of
basic and elementary principles, where the harm or potential for harm cannot
be denied, and which violation is so prejudicial to the rights of the defendant as
to make a fair trial impossible.’” Hollingsworth v. State, 987 N.E.2d 1096, 1098
(Ind. Ct. App. 2013) (quoting Jewell, 887 N.E.2d at 942), trans. denied.
[11] Kaufman contends that the letter he received in October 2014 from Godden,
informing him that he would not resume reporting probation until after he had
completed his parole term and was not required to have appointments with
Godden until he was released from parole, led him to believe that he would not
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be subject to probation until 2016 when his parole term ended. Therefore,
because he was misled by a lack of notice, the trial court committed
fundamental error when it denied his motion to dismiss and revoked his
probation. We disagree.
[12] On July 18, 2008, when Kaufman was sentenced for his original crimes, he was
informed by the trial court of the various terms and conditions of his probation,
including that he not have contact with any person under the age of eighteen.
On July 5, 2011, Kaufman met with Godden, who reviewed Kaufman’s terms
of probation with him, one of which stated that he was never to be alone with
or have contact with a person under the age of eighteen. In February 2013,
Kaufman filed a request that the trial court modify the terms of his probation so
that he could live with his wife and newborn daughter, and on the same date,
the probation department asked the trial court to allow Kaufman to leave
Elkhart County so that he could attend a therapy program. On July 16, 2013,
the probation department filed a notice of probation violation due to Kaufman
allegedly attempting to record a sex offender group counseling session, which
was in violation of the program’s rules. He was later found to have violated the
terms of his probation, and as a sanction, the trial court ordered that Kaufman
continue on probation as previously ordered. On January 29, 2015, the
probation department filed another petition alleging that Kaufman had violated
the terms of his probation for the instant actions of having contact with a person
under eighteen years of age.
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[13] From the time of his sentencing, Kaufman was made aware of the terms of his
probation and that he was subject to these terms, and the subsequent actions of
requesting modifications of the probationary terms and being found to have
violated probation, further demonstrate his awareness of being subject to the
terms of probation thereafter. It is “well-established precedent that a
defendant’s probationary period begins immediately after sentencing.” Baker v.
State, 894 N.E.2d 594, 597-98 (Ind. Ct. App. 2008) (discussing a long line of
cases holding that the probationary period begins immediately after sentencing).
“Probation may be revoked at any time for a violation of its terms,” which
“includes revocation prior to the start of probation.” Champlain v. State, 717
N.E.2d 567, 571 (Ind. 1999). We conclude that Kaufman has not shown that
the trial court committed fundamental error in denying his motion to dismiss
the petition to revoke his probation. As Kaufman does not argue that the
evidence supporting the revocation of his probation was lacking, we also find
that the trial court did not err in revoking his probation.
[14] Affirmed.
May, J., and Crone, J., concur.
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