MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Sep 26 2016, 8:51 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles R. Ellis,
1
September 26, 2016
Court of Appeals Case No.
Appellant-Defendant,
34A05-1511-CR-1844
v. Appeal from the Howard Superior
Court.
The Honorable William C. Menges,
State of Indiana, Judge.
Cause No. 34D01-0801-FB-57
Appellee-Plaintiff.
Darden, Senior Judge
1
Ellis contends that the sentencing order from which he appeals incorrectly refers to him as Charles R. Ellis
when his name is Charlie R. Ellis. We refer to him as Charles R. Ellis, which is the name shown in the
caption of this appeal.
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Statement of the Case
[1] The State filed a petition to revoke Charles R. Ellis’s suspended sentence. After
the trial court accepted Ellis’s admission to the probation violation, the court
imposed sentence on the violation. Ellis appeals, contending that the trial
court’s sentence is illegal or erroneous. We affirm.
Issue
[2] The sole issue presented for appeal is whether the sentence imposed by the trial
court is illegal or erroneous.
Facts and Procedural History
[3] On January 24, 2008, the State charged Ellis with two counts of dealing in
2 3
cocaine, each as a Class B felony. Apparently, Ellis plead guilty in open court
2
Ind. Code § 35-48-4-1 (2006).
3
The record provided to us shows a document filed with the court, purporting to be submitted by the State
and is signed by Ellis and his trial counsel. The Recommendation of Plea Agreement indicates that “The
Prosecutor anticipates that the Defendant, Charles R. Ellis, intends to enter a plea of guilty to Count I,
Possession of Cocaine, a Class D Felony, as a lesser included offense and Count II, Possession of Cocaine, a
Class D Felony, as a lesser included offense.” Appellant’s App. p. 61. The document goes on to state that
the “recommendation is filed with the Court prior to entry of the above plea.” Id. The recommendation,
referring only to Count I, states that the “Defendant will be sentenced to the Indiana Department of
Corrections [sic] for three (3) years, with one (1) year to be served on In-Home Detention and two (2) years
suspended to supervised probation.” Id. No further reference is made to Count II, nor is there a reference to
consecutive sentencing. The document concludes by stating “the State of Indiana and Defendant respectfully
move the Court accept the terms of this negotiated Recommendation of Plea Agreement.” Id. at 62. An
additional document entitled “Agreed Entry On Pre-Trial Conference” was submitted to the trial court. Id. at
63. The agreed entry provides as follows:
The parties file a Recommendation of Plea Agreement. The Defendant confirms that he
or she is aware that the Court is not a party to the agreement, and if the Court accepts the
terms of the Agreement, it will be bound by it. If the Court does not accept the
Agreement, the Defendant will no longer be bound by it, and can have a trial. This
matter is referred to the Howard County Adult Probation Department for a Pre-Sentence
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to two counts of the lesser included offenses of possession of cocaine, each
4
count as a Class D felony; with the State to make a recommendation that Ellis
receive a three year sentence on Count I with one year to be served on home
detention followed by two years of supervised probation. On December 8,
2008, the trial court accepted Ellis’s plea and sentenced him to consecutive
sentences of three years imprisonment on each count, with one year executed
on home detention and the remaining two years suspended to supervised
probation for an aggregate sentence of six years. Both parties have interpreted
the order to mean that Ellis would spend two years on home detention followed
by four years of probation. Ellis received credit for one hundred eighty-three
days of jail time credit and one hundred eighty-three days of good time credit,
or an aggregate of three hundred sixty-six days while awaiting trial on these
charges. Ellis was ordered to report to Howard County Home Detention
within twenty-four hours of sentencing.
[4] Subsequently, on June 26, 2009, the State filed a notice of non-compliance with
conditions of home detention through Howard County Community
Corrections. In particular, the State alleged that Ellis was terminated from a
Fulton County Home Detention program on June 12, 2009 for an unrelated
Investigation and Report, and this cause is set for further hearing, and potential
sentencing on the 3rd day of Dec., 2008, at 1:30 p.m.. The Defendant is ORDERED to
report to Probation FORTHWITH.
Id. at 63. The Agreed entry is signed by Ellis, his counsel, and the State.
4
Ind. Code § 35-48-4-6 (2006).
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charge for failing to pay mandatory fees and for changing his residence to
Howard County. Appellant’s App. p. 73. As of June 24, 2009, however, Ellis
had not reported to or contacted Howard County Community Corrections to
begin placement for his two years of home detention in Howard County. Id. A
warrant was issued for his arrest.
[5] Ellis was arrested on April 12, 2010, for not reporting to Howard County
Community Corrections. At an initial hearing on April 15, 2010, Ellis
informed the court that he wanted to admit the allegation of non-compliance.
The trial court set the matter for a hearing on April 29, 2010, released Ellis on
his own recognizance as to the non-compliance allegation only, and ordered
Ellis to report to Howard County Community Corrections to set up his in-home
detention on the underlying sentence. Id. at 6. Ellis reported on April 19, 2010.
[6] At the hearing held on April 29, 2010, the trial court accepted Ellis’s admission
to the non-compliance allegations and extended Ellis’s original probation for a
period of six months for that violation, keeping all other terms and conditions
of probation in full force and effect. The court also gave Ellis three days of jail
time credit and three days of good time credit from April 12, 2010, the date of
his arrest until April 15, 2010, the date of his release on his own recognizance.
[7] On July 1, 2010, the State filed a notice of violation against Ellis alleging that
when he reported for his home detention interview on April 19, 2010, Ellis
tested positive for amphetamine, hydrocodone, hydromorphone, oxycodone
and cannabinoids. The notice further alleged that on May 13, 2010, Ellis again
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tested positive for methamphetamine, amphetamine, oxycodone, and
morphine. Ellis also owed $608.00 under his home detention agreement. A
warrant was issued for Ellis’s arrest.
[8] When Ellis was arrested on that warrant on August 12, 2010, he had served 106
days on in-home detention. Again, on October 28, 2010, he was released on his
own recognizance by agreement of the parties. As a result, Ellis had served
seventy-seven days incarcerated awaiting disposition on the in-home detention
violation.
[9] On January 6, 2011, Ellis admitted to the allegation of non-compliance and the
trial court gave him credit for all time served incarcerated, jail time credit and
good time, and concluded that he was discharged from his sentence to in-home
detention. However, the trial court ordered that his period of supervised
probation be extended for an additional period of six months. Thus, the period
of supervised probation as extended amounted to a period of five years.
Therefore, as of January 6, 2011, the earliest Ellis could possibly be released
from supervised probation, without additional sanctions for violations or court
order was early January 2016.
[10] Ellis served approximately nine months on supervised probation. However, on
September 16, 2011, he was convicted and sentenced to prison on an unrelated
charge. Therefore, from September 16, 2011, until March 22, 2013, Ellis was
incarcerated for the unrelated conviction for possession of a controlled
substance. He was returned to supervised probation on the instant charges on
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March 23, 2013. Upon his return, Ellis had approximately four years and three
months remaining on supervised probation in Howard County commencing on
or about March 23, 2013.
[11] On June 16, 2015, the State filed a petition to revoke Ellis’s suspended
sentence, citing both his failure to report to probation as requested since March
16, 2015, and for being arrested on a new charge of possession of a controlled
substance and other matters. Ellis was arrested on June 19, 2015. Accordingly,
Ellis had served almost an additional two years and three months of his
probationary period prior to his June 19, 2015 arrest; although some apparently
was not under direct supervision.
[12] Ellis remained incarcerated and at a set September 24, 2015 hearing date, he
admitted the allegations of the petition to revoke. At the trial court’s request,
the probation department filed its sentencing recommendation on October 20,
2015. The probation department recommended that Ellis serve the remainder
of his previously suspended sentence in the Department of Correction, and
calculated the remaining sentence to be 816 days. On October 21, 2015, the
trial court imposed a sentence of 816 days as recommended. The trial court
specifically denied Ellis any jail credit time from his June 19, 2015 arrest and
incarceration, apparently because he was being held on another unrelated
charge. Ellis now appeals.
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Discussion and Decision
[13] Ellis argues that the sentence imposed after his probation was revoked is either
illegal or erroneous. We disagree.
[14] Upon review of a trial court’s decision to revoke probation and the trial court’s
sentencing decision after probation has been revoked, we look for an abuse of
discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans.
denied. An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances before the court, or when the trial
court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
[15] Our Supreme Court has held that “a trial court has the statutory authority to
order executed time following revocation of probation that is less than the
length of the sentence originally suspended, so long as, when combined with
the executed time previously ordered, the total sentence is not less than the
statutory minimum.” Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004). Here,
Ellis was convicted of two Class D felony offenses, with the sentences to be
served consecutively. At the time Ellis was sentenced, the sentencing range for
a Class D felony was a fixed term of between six months and three years, with
the advisory sentence being one and one-half years. Ind. Code § 35-50-2-7
(2005). Therefore, the trial court’s imposition of 816 days, or approximately
two years and almost three months, which is far less than the length of the
sentence originally suspended, is more than the statutory minimum.
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[16] Further, Indiana Code section 35-38-2-3(h) (2015) provides options for the
sanction a trial court may impose upon finding a violation of a condition of
probation prior to the termination of that period. One of the options,
subsection 3, provides that the trial court may order execution of all or part of
the sentence that was suspended at the time of initial sentencing. Four years
(1,460 days) of Ellis’s sentence were suspended to supervised probation.
Imposition of 816, or approximately two years and almost three months, is less
than the sentence initially suspended and is authorized by statute.
[17] We note that Ellis was initially sentenced to an aggregate sentence of six years
or 2,190 days. On October 21, 2015, his four-year supervised probation was
revoked and Ellis was sentenced for the probation violation to 816 days, which
is less than the 1,460 days he could have been ordered to serve. Although Ellis
was arrested on June 19, 2015 and this case was disposed of on October 21,
2015, the trial court specifically denied Ellis jail credit time, apparently because
he was being held on another unrelated charge. Therefore, the trial court was
acting within its discretion in sentencing Ellis. Consequently, Ellis will not
have served executed time related to these charges in excess of his original
sentence for these charges. We conclude that his sentence is neither illegal nor
erroneous.
Conclusion
[18] In light of the foregoing, we affirm the trial court’s judgment.
[19] Affirmed.
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Mathias, J., and Barnes, J., concur.
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