MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 23 2017, 5:21 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Tomlinson, October 23, 2017
Appellant-Defendant, Court of Appeals Case No.
34A05-1706-CR-1448
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff Menges, Judge
Trial Court Cause No.
34D01-1109-FA-774
Altice, Judge.
Case Summary
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[1] After admitting that she violated the terms of her probation, the trial court
ordered Angela Tomlinson to serve the balance of her previously suspended
sentence, which the court determined to be 2516 days. On appeal, Tomlinson
challenges the trial court’s determination as to the balance of her previously
suspended sentence. Tomlinson also argues that the trial court abused its
discretion in ordering that she serve the balance of her previously suspended
sentence.
[2] We affirm and remand.
Facts & Procedural History
[3] On September 1, 2011, the State charged Tomlinson with dealing in a schedule
III controlled substance as a Class A felony and neglect of a dependent as a
Class D felony. On August 15, 2012, Tomlinson pled guilty to the lesser-
included offense of dealing in a schedule III controlled substance as a Class B
felony. The trial court sentenced Tomlinson to twelve years, with eight years
executed and four years suspended to supervised probation. The trial court
awarded a total of 328 credit days.
[4] On January 29, 2014, the trial court modified Tomlinson’s sentence, ordering
that she be transferred to the community transition program under home
electronic monitoring effective that day and that the balance of her executed
sentence be suspended to supervised probation. The trial court also ordered
that her release from the Department of Correction (DOC) would be effective
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July 29, 2014. On August 21, 2014, Tomlinson appeared before the court and
was advised of the terms of her probation.
[5] On February 17, 2016, the State filed a petition to revoke Tomlinson’s
probation, alleging that she had committed a new criminal offense of Level 6
felony maintaining a common nuisance and tested positive for cocaine and
opiates. Tomlinson was arrested on February 25, 2016. On March 23, 2016,
Tomlinson pled guilty to visiting a common nuisance, a Class B misdemeanor,
and admitted the allegations in the petition. Pursuant to the plea agreement,
the disposition for the probation violation was a sentence of fifty-four days,
which accounted for twenty-seven actual days served while awaiting disposition
and twenty-seven credit days. Tomlinson was returned to probation.
[6] On July 21, 2016, the State filed a request for a sanction hearing in this cause.
The outcome of the hearing was that Tomlinson was ordered to serve thirty
days in the Howard County Jail.1 She was released from jail on August 4,
2016.
[7] On October 21, 2016, the State filed a petition to revoke Tomlinson’s
suspended sentence alleging that she had failed to report to her probation
officer, tested positive for cocaine, failed to report for a drug screen, and
committed new offenses of Level 6 felony unlawful use of a legend drug and
1
In subsequent petitions to revoke suspended sentence, the State refers to this action as a “behavior
modification.” Appellant’s Appendix Vol. 3 at 51.
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three counts of Class A misdemeanor theft. It is unclear when Tomlinson was
arrested on the new charges and petition to revoke. On March 7, 2017,
Tomlinson admitted to the allegations and the trial court ordered that she be
returned to probation and successfully complete and pay for the re-entry court
program as ordered under a different cause.
[8] On March 9, 2017, Tomlinson signed the re-entry program participation
agreement. On March 15, 2017, the Howard County Re-Entry Court Program
filed a notice of termination alleging that Tomlinson committed a new criminal
offense. On April 13, 2017, the trial court found that Tomlinson violated the
rules of the re-entry program and terminated her participation.
[9] On April 17, 2017, the State filed yet another petition to revoke Tomlinson’s
suspended sentence, which was based on her termination from the re-entry
program. On June 6, 2017, Tomlinson admitted the allegations in the petition.
The trial court revoked Tomlinson’s probation and ordered that she serve the
balance of her previously suspended sentence, which the court determined was
2516 days. In its oral sentencing statement, the trial court ordered that
Tomlinson be awarded credit time for 108 days (54 actual days).2 Tomlinson
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
2
In the written sentencing order, the trial court stated, “jail time credit in the sum of 56 actual days or 108
credit days.” Appellant’s App. Vol. 3 at 80. This is clearly a typographical error.
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[10] Tomlinson argues that the trial court erred in calculating her credit for time
spent in confinement which led to an error in calculating the balance of her
previously suspended sentence. Because credit time is a matter of statutory
right, trial courts do not have discretion in awarding or denying such credit.
James v. State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). In other words, a
defendant is entitled by statute to credit for time spent in confinement prior to
sentencing. McAllister v. State, 913 N.E.2d 778, 782 (Ind. Ct. App. 2009).
Generally, a person “imprisoned awaiting trial or sentencing is initially
assigned to Class I.” Ind. Code § 35-50-6-4(a) (2008). A person assigned to
Class I earns one day of credit time for each day the person is confined awaiting
trial or sentencing. I.C. § 35-50-6-3(a) (2008).
[11] The trial court determined that Tomlinson had 2516 days remaining of her
suspended sentence. Tomlinson calculates the balance of her suspended time to
be 1496 days. By the State’s calculation, Tomlinson has 2532 days remaining
of her suspended sentence, which calculation includes credit for time the State
acknowledges the trial court failed to award.
[12] We begin by noting that there is no indication in the record as to how the court
calculated the days remaining on Tomlinson’s suspended sentence and we have
been unable to make the numbers add up. With regard to Tomlinson’s
calculation, we cannot discern from the record that Tomlinson is entitled to all
of the credit she claims or even if such was included in the court’s calculation of
credit time in determining the remaining portion of her suspended sentence.
The State acknowledges a possible error in the court’s calculation of credit time
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as it concerns the time spent in confinement prior to this most recent probation
violation, but does not agree with Tomlinson that she is entitled to all other
claimed credit.
[13] A defendant is entitled to credit for time spent in confinement for a probation
violation. See Dolan v. State, 420 N.E.2d 1364, 1374 (Ind. Ct. App. 1981)
(holding that a defendant is entitled to credit time for time spent in confinement
for a probation violation as long as the defendant is being held solely on the
probation violation). However, a defendant is not entitled to credit if credit for
the same time period was given in another case in which the sentence was
consecutive. Diedrich v. State, 744 N.E.2d 1004, 1007 (Ind. Ct. App. 2001)
(noting that when a defendant is confined for multiple cases and the other case
involves a consecutive sentence, credit is given to only one offense; defendant is
not entitled to duplicate credit time).3 In Tomlinson’s calculation, she includes
overlapping periods of confinement for new offenses and probation violations.
As the State points out, whether Tomlinson was entitled to credit or whether
such credit was already given cannot be determined from the record.
[14] Tomlinson also claims she is entitled to credit for time spent in the court’s re-
entry program. We note, however, that it is not clear whether the trial court did
3
Without citation to the record, the State maintains that “[i]t appears that [Tomlinson] received credit in
[another cause] on March 7, 2017 for 149 actual days served while awaiting trial and disposition in that
matter or 298 credit days.” Appellee’s Brief at 10 n.1. This does not address the issue of whether Tomlinson
was entitled to such credit time in this cause. Such is dependent on whether the sentence imposed in the
other cause was concurrent or consecutive.
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in fact give Tomlinson credit for such time. Further, there is nothing in the
record that indicates how Tomlinson’s time in the re-entry program was served.
If Tomlinson’s time in the re-entry program was served on work release or
home detention, then she would have been entitled to credit for such time. See
Brattain v. State, 777 N.E.2d 774, 778 (Ind. Ct. App. 2002) (stating that
probationers are entitled to credit for time served in work release or in-home
detention).
[15] On appeal, it is the defendant’s burden to show that the trial court erred.
Harding v. State, 27 N.E.3d 330, 332 (Ind. Ct. App. 2015). The State, however,
acknowledges possible error and asserts that “[b]ecause of the discrepancies, the
proper remedy in this case may be to remand this case back to the trial court.”
Appellee’s Brief at 12. We agree. Given that we cannot discern the basis for the
trial court’s calculation of the balance of Tomlinson’s suspended sentence and
that the discrepancies in the record preclude us from making the numbers add
up, we choose to remand to the trial court for clarification as to how it
calculated the balance of Tomlinson’s suspended sentence.
Abuse of Discretion
[16] Tomlinson also argues that “the Trial Court should have unsuspended only the
remaining portion of the original eight (8) years executed sentence.” Appellant’s
Brief at 12. She maintains that the court’s decision to “unsuspend[] the balance
of the original twelve (12) year sentence” is an abuse of discretion. Id. at 13.
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[17] Probation is a matter of grace left to trial court discretion, not a right to which a
criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.
App. 2005), trans. denied. Where a trial court has exercised its grace by granting
a defendant probation in lieu of incarceration, it has considerable leeway in
deciding how to proceed when the defendant then violates the conditions of his
probation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the sanction
imposed by the trial court upon a finding of a probation violation is reviewed
on appeal for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953
(Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. Although the court has several alternative
sanctions it may impose where it has found that a defendant has violated his
probation, one of those sanctions is to order execution of all or part of the
sentence that was suspended at the time of initial sentencing. Id.; see also Ind.
Code § 35-38-2-3(h)(3).
[18] We begin by noting that when Tomlinson’s sentence was modified in January
2014, the trial court clearly ordered the balance of the executed portion of the
sentence to be served on probation. This order for probation was in addition to
the four years of the original sentence that was initially suspended to probation.
[19] In ordering that Tomlinson serve the balance of the previously suspended
sentence, including both the initial period of probation and the balance of the
executed portion that was later suspended to probation, the trial court aptly
stated:
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I, also, was struck by the idea that she wants a second chance.
We gave her a fourth or fifth or sixth or seventh chance when we
put her in re-entry. That was basically the last choice or last
option we had for any kind of community based treatment.
Everything else has been tried over the years and nothing has
been successful and I think the only thing that’s left is to execute
the balance of her suspended sentence.
Transcript at 14. We will not second-guess the trial court in this regard. The
trial court did not abuse its discretion.
We affirm and remand for clarification.
Baker, J. and Bailey, J., concur.
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