Chad A. Madden v. State of Indiana

Feb 04 2015, 9:26 am

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jason J. Pattison Gregory F. Zoeller
Jenner Pattison Hensley & Wynn, LLP Attorney General of Indiana
Madison, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Chad A. Madden, February 4, 2015

Appellant-Defendant, Court of Appeals Case No.
39A01-1404-CR-173
v. Appeal from the Jefferson Superior
Court

State of Indiana, The Honorable Alison T. Frazier,
Judge
Appellee-Plaintiff
Cause No. 39D01-1206-FB-721

Mathias, Judge.

[1] Chad A. Madden (“Madden”) appeals the order of the Jefferson Superior Court

denying his motion to correct error which claimed that the trial court had

improperly delegated to the Community Corrections program the authority to

decide whether Madden should be subject to electronic monitoring.

[2] We affirm.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 1 of 18
 Facts and Procedural History
[3] On June 28, 2011, pursuant to a plea agreement, Madden pled guilty to one

count of Class D felony receiving stolen property in Cause No. 39D01-1006-FB-

487 (“Cause No. 487”). The trial court accepted the plea agreement and

imposed a three-year suspended sentence. Nine months later, on March 13,

2012, the State charged Madden with one count of Class A misdemeanor check

deception in Cause No. 39D01-1203-CM-305 (“Cause No. 305”).

[4] On June 7, 2012—at which time Madden was on probation in Cause No. 487,

and his charges under Cause No. 305 were pending—security cameras recorded

him stealing several cartons of cigarettes from a gas station in Hanover,

Indiana. The next day, when police officers attempted to arrest Madden, he fled

on foot and, after a brief chase, had to be subdued with a taser. After Madden

was apprehended, the police discovered methamphetamine and methadone in

his possession. Accordingly, on June 11, 2012, the State charged Madden in

Cause No. 39D01-1206-FB-721 (“Cause No. 721”) as follows: Count I, Class B

felony possession of methamphetamine; Count II, Class C felony possession of

a controlled substance; Count III, Class D felony theft; Count IV, Class A

misdemeanor resisting law enforcement; and Count V, Class A misdemeanor

possession of paraphernalia. In addition, the State filed a petition to revoke

Madden’s probation in Cause No. 487.

[5] On March 6, 2013, Madden entered into a plea agreement with the State

whereby he pleaded guilty to the reduced charge of Class D felony possession of

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 2 of 18
 methamphetamine in Cause No. 721, Class A misdemeanor check deception in

Cause No. 305, and admitted that he violated his probation in Cause No. 487.

The trial court accepted the plea agreement and, per its terms, sentenced

Madden to three years for possession of methamphetamine, one year for check

deception, and reinstated his three-year suspended sentence for the probation

violation—all to be fully executed and served consecutively. In accordance with

the plea agreement, the trial court also referred Madden to the “Purposeful

Incarceration” program, with the recommendation that he be placed in the

Therapeutic Community Program (“TCP”) at Branchville Correctional Facility.

The Department of Correction (“DOC”) subsequently assigned Madden to

Branchville, and on April 22, 2013, he enrolled in the TCP.

[6] Another provision of the plea agreement stipulated that upon his successful

completion of the TCP, Madden could petition the trial court for a sentence

modification. On December 18, 2013, Madden filed a petition to modify his

sentence based on his completion of the TCP program. The trial court held a

hearing on Madden’s sentence modification petition on February 19, 2014, and

issued an order that same day granting the petition. In its sentence modification

order, the trial court found that the sentences under Cause No. 487 and Cause

No. 305 had been fully served. The court then suspended the remaining

sentence under Cause No. 721 to supervised probation. The trial court also

ordered Madden:

to report to the Jefferson County Community Corrections Department
as a specific term of probation with determination of appropriate
program to be made by the Community Corrections Department, and

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 3 of 18
 shall include all other terms of probation as outlined in the Terms of
Supervised Probation With Community Corrections Placement prepared by
the Court, read to the defendant at this hearing, and filed in this
matter.

Appellant’s App. p. 98. In relevant part, the Terms of Probation instructed

Madden to:

14. comply with all rules for Community Corrections placement,
including but not limited to “component rules”, and with any program
recommended or required by Community Corrections, including electronic
monitoring, day reporting, counseling, and educational programs[.]
[I]n the event that [C]ommunity Corrections recommends or requires
electronic monitoring, the following conditions and terms apply:
15. . . . be confined to home at all times except when the defendant is
a. working at employment approved by the Court or traveling to
or from said employment,
b. unemployed and seeking employment approved by the Court,
c. undergoing counseling, medical, mental health, psychiatric
treatment, or other treatment approved by the Court,
d. attending an educational institution or facility or other
program approved by the Court,
e. attending a regularly scheduled religious service at a bona fide
place of worship,
f. participating in a community work release or community
service program approved by the Court, or
g. engaged in another activity approved in advance by the Court
or Community Corrections[.]

Appellant’s App. p. 94 (emphasis added). The Terms of Probation further notified

Madden that a violation of the electronic monitoring rules could result in a criminal

charge for escape; that he was obligated to abide by a schedule prepared by

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 4 of 18
 Community Corrections and to communicate any changes in that schedule with

Community Corrections; that he must maintain a working land-line telephone at his

house; and that he would be responsible for payment of all applicable electronic

monitoring fees. At the modification hearing, Madden acknowledged that he

understood and agreed to comply with the Terms of Probation.

[7] On March 19, 2014, Madden filed a motion to correct error. He alleged that

the trial court improperly delegated its authority by allowing Community

Corrections to decide whether—and for what duration—he should be placed on

electronic monitoring as a condition of his probation.1 On March 21, 2014, the

trial court denied his motion without a hearing. Madden now appeals.

Standard of Review
[8] Madden claims that the trial court erred in setting the conditions of his

probation. We first note that he is appealing from the trial court’s denial of his

motion to correct error. On review, our court will uphold a trial court’s ruling

on a motion to correct error absent an abuse of discretion. Nichols v. State, 947

N.E.2d 1011, 1015 (Ind. Ct. App. 2011), reh’g denied. The trial court abuses its

discretion when its decision is clearly against the logic and effect of the facts

and circumstances, or when the trial court misinterprets the law. Heaton v. State,

984 N.E.2d 614, 616 (Ind. 2013). To the extent that Madden has presented any

1
The record does not indicate whether Community Corrections did, in fact, subject Madden to electronic
monitoring.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 5 of 18
 issues that involve questions of law, our review is de novo. Nichols, 947 N.E.2d

at 1015.

[9] We also note that trial courts are vested with broad discretion in establishing

the terms of probation, which are subject to review only for an abuse of

discretion. Berry v. State, 10 N.E.3d 1243, 1247 (Ind. 2014). Probation

conditions “must be reasonably related to the treatment of the defendant and

the protection of public safety.” Hurd v. State, 9 N.E.3d 720, 726 (Ind. Ct. App.

2014). Accordingly, our task on review is to consider whether the conditions

imposed on the defendant “are reasonably related to attaining these goals.” Id.

Although probation and community corrections programs are not precisely the

same, they are treated the same for many purposes. McQueen v. State, 862

N.E.2d 1237, 1243 (Ind. Ct. App. 2007). Both probation and community

corrections serve as alternatives to commitment to the DOC; they both are

made at the sole discretion of the trial court; a defendant is not entitled to serve

a sentence in either, and placement is a “matter of grace” and a “favor, not a

right”; and the due process rights for revocation of community corrections

placement and probation hearings are the same. Id.

Discussion and Decision
[10] Madden claims that the trial court erred by delegating to Community

Corrections the authority to determine if, and for how long, he should be placed

on home detention. Home detention, he claims, is a “materially punitive”

condition of probation that must be determined by the trial court, not

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 6 of 18
 Community Corrections. Madden notes that Indiana Code section 35-38-2-

1(a)(1) provides that the trial court “shall . . . specify in the record the

conditions of the probation.” He also observes that, as a condition of

probation, “the court may require a person to . . . undergo home detention under

IC 35-38-2.5.” Ind. Code § 35-38-2-2.3(a)(16) (emphasis added). Madden reads

these provisions to mean that only the trial court may determine if and for how

long he should be subject to home detention. We do not agree.

[11] Although trial courts are indeed required by statute to set forth the terms of

probation, they also have authority to allow Community Corrections programs

to supervise various aspects of probation. For example, a trial court may order a

probationer to home detention supervised by a Community Corrections

program. Ind. Code § 35-38-2.5-5(c). A trial court may also order a probationer

subject to such home detention to abide by a schedule prepared by the

Community Corrections program. Ind. Code § 35-38-2.5-6(3). More

importantly, when supervising a probationer on home detention, Community

Corrections programs are specifically required by statute to “set the monitoring

device[2] and surveillance equipment to minimize the possibility that the

2
A “monitoring device” is defined as “an electronic device that:

(1) can record or transmit information twenty-four (24) hours each day regarding an
offender’s:

(A) presence or absence from the offender’s home; or
(B) precise location;
(2) is minimally intrusive upon the privacy of the offender or other persons residing in
the offender’s home

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 7 of 18
 offender or alleged offender can enter another residence or structure without a

violation.” Ind. Code § 35-38-2.5-10(d).

[12] Here, the trial court ordered, as a condition of probation, that Madden be

subject to home detention as supervised by the Community Corrections

program, which is authorized by the home detention statutes. Also, the

Community Corrections program is required by statute to place such a

probationer on electronic monitoring. Given this statutory authority, we cannot

say that the portion of the trial court’s order requiring Madden to comply with

all rules established by the Community Corrections program, including

electronic monitoring, improperly delegates the trial court’s sentencing

authority to the Community Corrections program.

[13] We find the cases cited by Madden in support of his claim to be distinguishable.

For example, Madden cites Freije v. State, 709 N.E.2d 323 (Ind. 1999), to

(3) with the written consent of the offender and with the written consent of other persons
residing in the home at the time an order for home detention is entered, may record or
transmit:
(A) a visual image;
(B) an electronic communication or any sound; or

(C) information regarding the offender’s activities while inside the offender’s home;
and
(4) can notify a probation department, a community corrections program, or a contract
agency if the offender violates the terms of a home detention order.

(b) The term includes any device that can reliably determine the location of an offender
and track the locations where the offender has been, including a device that uses a global
positioning system satellite service.

(c) The term does not include an unmanned aerial vehicle (as defined in IC 35-31.5-2-
342.3).
Ind. Code § 35-38-2.5-3(a).

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 8 of 18
 support his claim that the trial court cannot delegate authority to impose

materially punitive obligations to Community Corrections. However, Freije

does not hold that the trial court may not “delegate” authority to Community

Corrections. Instead, it holds that a trial court may not unilaterally impose

conditions of probation that materially add to the punitive obligation, such as

home detention and community service, after the court has already accepted a

plea agreement which did not contain such conditions. Id. at 325-26. See also

Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012) (following Freije and

holding that the trial court was without authority to order defendant to perform

community service when such was not provided for in plea agreement); see also

Disney v. State, 441 N.E.2d 489, 493 (Ind. Ct. App. 1982) (holding that trial

court erred in ordering restitution as a condition of probation where such was

not included in the plea agreement). Here, however, Madden does not claim

that the trial court’s modification of his sentence is contrary to his plea

agreement.3 In fact, the plea agreement specifically authorizes the trial court to

modify Madden’s sentence, and the plea agreement places no limitations on the

trial court’s discretion in so modifying the sentence. See Appellant’s App. p .61.

[14] Similarly, McGuire v. State, 625 N.E.2d 1281 (Ind. Ct. App. 1993), provides little

support for Madden’s position. That case held that a trial court erred in

ordering restitution in an amount to be determined by the probation

3
The dissent contends that, even if the trial court had authority to “delegate” to Community Corrections the
authority to determine the conditions of Madden’s electronic monitoring, such a condition would violate the
terms of his plea agreement. We disagree, and as noted above, Madden does not directly claim that the trial
court’s modification order violated the plea agreement.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 9 of 18
 department, not to exceed $250. Id. at 1282. The court noted that the statutory

authority to order restitution granted such authority to the trial court, not the

probation department. Id. Here, in contrast, the relevant statutes authorize the

trial court to impose home detention as a condition of probation and to have a

Community Corrections program supervise such home detention. Other

statutes authorize the Community Corrections program to set rules for

probationers placed in the program and specifically requires Community

Corrections to set monitoring devices and surveillance equipment to ensure a

probationer’s compliance.4

[15] Madden also claims that the trial court’s order deprives him of due process.

Although not entitled to the full panoply of rights afforded to a criminal

defendant, a probationer is entitled to certain minimum requirements of

procedural due process, which include:

(a) written notice of the claimed violations of probation; (b) disclosure
to the probationer of the evidence against him; (c) opportunity to be
heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing
confrontation); (e) a neutral and detached hearing body; and (f) a
written statement by the fact finders as to the evidence relied on and
reasons for revoking probation.

4
The other cases cited by Madden are also unavailing. Ratliff v. State, 546 N.E.2d 309, 313 (Ind. Ct. App.
1989), simply holds that “a defendant’s probation cannot be revoked for the violation of conditions not
specified, either orally or in writing, at the time of sentencing.” Here, however, the terms of Madden’s
probation, including any electronic monitoring, are set forth in the written terms of his probation. Nor has
Madden yet been accused of violating any of the conditions of his probation; he is simply challenging the
terms of his probation. Also, United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998), held that the trial
court exceeded its authority and gave to the probation office too much discretion to manage drug tests of the
defendant. However, not only is Bonanno not binding on this court, the statutes at issue here do authorize the
actions of the trial court.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 10 of 18
 Pope v. State, 853 N.E.2d 970, 972-73 (Ind. Ct. App. 2006) (citing Morrissey v.

Brewer, 408 U.S. 471, 489 (1972)). In arguing that he was denied due process,

Madden first simply reiterates his claims regarding the trial court’s allegedly

improper “delegation.” Madden then argues:

By delegating that authority to Community Corrections the Trial
Court eliminates the probationers right to a hearing, where [the
defendant] should be represented by counsel, be provided the
opportunity to present evidence, and have the opportunity to contest
Community Corrections decision to impinge on their “conditional
liberty interest”.
Appellant’s Br. p. 11. To the extent that Madden’s argument refers to the trial

court’s sentence modification order, we would note that Madden was in fact

provided with a hearing, at which he was represented by counsel and presented

evidence to support his sentence modification. Accordingly, we cannot see any

violation of procedural due process in this regard.

[16] If Madden is instead referring to any future finding by the Community

Corrections program that he violated his probation, this question is not yet ripe

for review as Madden has not yet been found to be in violation of any terms of

his probation. Moreover, we find nothing in Madden’s Terms of Probation that

would indicate that the trial court intended to allow the Community

Corrections program unilaterally to determine whether Madden had violated

the terms of his probation.5

5
Further, as we noted in Pope, even if we were to conclude that “Community Corrections [is] the proper
decision-making authority,” a doubtful proposition, then Community Corrections would be “required to give
[the probationer] notice and a hearing.” 853 N.E.2d at 973.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 11 of 18
 Conclusion
[17] The trial court’s order modifying Madden’s sentence and imposing conditions

of probation did not improperly delegate the trial court’s authority to

Community Corrections, nor did the trial court’s order deprive Madden of

procedural due process.

[18] Affirmed.

Crone, J., concurs.
Riley, J., dissents with opinion.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 12 of 18
 IN THE
COURT OF APPEALS OF INDIANA

Chad A. Madden, February 4, 2015

Appellant-Defendant, Court of Appeals Case No.
39A01-1404-CR-173
v. Appeal from the Jefferson Superior
Court

State of Indiana, The Honorable Alison T. Frazier,
Judge
Appellee-Plaintiff
Cause No. 39D01-1206-FB-721

Riley, Judge, dissenting.

[19] I disagree with the majority that the trial court did not improperly delegate its

authority to Community Corrections to determine whether, and for what

duration, Madden should be subject to electronic monitoring—i.e., home

detention—as a condition of his probation. Therefore, I respectfully dissent.

[20] Indiana’s probation statute unambiguously states that “[w]henever it places a

person on probation, the court shall . . . specify in the record the conditions of

the probation.” Ind. Code § 35-38-2-1(a)(1) (emphasis added). Specifically,

“the court may require a person to do [any] combination” of twenty-three

statutorily-enumerated conditions, one of which is to “[u]ndergo home

detention.” I.C. § 35-38-2-2.3(a)(16) (emphasis added). In addition, the home

detention statute specifies that “as a condition of probation a court may order an

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 13 of 18
 offender confined to the offender’s home for a period of home detention lasting

at least sixty (60) days.” I.C. § 35-38-2.5-5 (emphasis added).

[21] Once a court has ordered electronic monitoring as a condition of probation, it

may assign supervisory duties to a community corrections department. I.C. §

35-38-2.5-5(c). See White v. State, 560 N.E.2d 45, 47 (Ind. 1990) (noting that the

trial court “sets the ‘conditions of probation’ and the probation officer

supervises and assists the defendant in implementing and carrying out those

conditions”). The majority assumes that Community Corrections’ supervisory

role equates to having the authority to require home detention. 6 I disagree.

[22] The probation and home detention statutes explicitly establish that the duty to

demarcate the conditions of probation resides squarely with the trial court. See

McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993) (finding the trial

court improperly delegated authority to the probation department to fix the

amount and manner of restitution because the probation statute specifically

directs the trial court to make these determinations). Nowhere in these statutes

is there language indicating that the trial court may delegate its authority to

define a defendant’s terms of probation, and “it is just as important to recognize

what a statute does not say as it is to recognize what it does say.” Million v.

6
The State contends that community corrections programs are statutorily authorized to establish their own
rules, and “community corrections inherently includes ‘electronic monitoring.’” (State’s Br. p. 8). In support
of this argument, the State relies on Indiana Code chapter 35-38-2.6, which governs direct placement in a
community corrections program. Contrary to a sentence that has been suspended to probation, direct
placement is a means of serving the executed portion of a sentence and must be succeeded by a term of
probation. I.C. § 35-38-2.6-7; Brown v. State, 894 N.E.2d 598, 600-01 (Ind. Ct. App. 2008). Home detention
may be ordered for either probation or direct placement in community corrections; here, however, the trial
court expressly made Madden’s compliance with Community Corrections’ requirements a condition of his
probation. Thus, this case is governed by Indiana Code chapter 35-38-2 and chapter 35-38-2.5.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 14 of 18
 State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995). Contrary to the majority’s

contention that “the Community Corrections program is required by statute to

place such a probationer on electronic monitoring[,]” the home detention

statute specifies that a “community corrections program charged by a court

with supervision of offenders and alleged offenders ordered to undergo home

detention shall, at the beginning of a period of home detention, set the

monitoring device . . . .” I.C. § 35-38-2.5-10(d) (emphasis added).

Accordingly, before Community Corrections may “set the monitoring device,”

there must be an order for home detention from the trial court. See I.C. §§§ 35-

38-2.5-5; -6; -10(d).

[23] Moreover, a probationer must receive “prospective notice of the standard of

conduct required of him or her while on probation.” Million, 646 N.E.2d at

1000. Pursuant to the probation statute, “the trial court must provide the

defendant a written statement containing the terms and conditions of probation

at the sentencing hearing.” Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App.

2013); see I.C. § 35-38-2-2.3(b)(1). If no written statement is furnished, the

record must at least reflect “that the probationer has been orally advised by the

sentencing court of the conditions of his probation and [that] the defendant

specifically acknowledges that he understands those conditions.” Seals v. State,

700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998).

[24] The majority correctly notes that Madden has not been accused of any

probation violations, but the purpose of requiring a record of the specific terms

of probation is also to “prohibit the imposition of additional conditions after

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 15 of 18
 sentencing.” Million, 646 N.E.2d at 1000. At the time of sentencing,

probations are “entitled to provisions which establish definite restrictions during

the probation period.” Dulin v. State, 346 N.E.2d 746, 754 (Ind. Ct. App. 1976),

reh’g denied. “[T]he language must be such that it describes with clarity and

particularity the misconduct that will result in penal consequences.” Hunter v.

State, 883 N.E.2d 1161, 1163 (Ind. 2008).

[25] Here, the Terms of Probation failed to conclusively apprise Madden of his

obligations because the condition of home detention was tentative, pending an

assessment by Community Corrections. The Terms of Probation specified the

rules that would govern Madden’s confinement in the event that Community

Corrections elected to require electronic monitoring, and Madden agreed to

comply with these rules when read aloud by the trial court. See I.C. §§ 35-38-

2.5-6; -7(a). Thus, there is no dispute that Madden had notice of the restrictions

to which he might be subjected. However, absent an order from the trial court

definitively making home detention/electronic monitoring a condition of his

probation, these parameters are inconsequential. Accordingly, I would find

that the trial court abused its discretion by authorizing Community Corrections

to officially decide whether to impose the condition of home detention.

[26] Furthermore, notwithstanding whether the trial court improperly delegated a

sentencing decision to Community Corrections, I would nevertheless find that

it was an abuse of discretion to require electronic monitoring as a condition of

Madden’s probation because the trial court’s initial sentencing decision and

basis for modification were controlled by the plea agreement. Upon acceptance

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 16 of 18
 of a plea agreement, which is contractual in nature, the trial court is bound by

its terms “and is precluded from imposing any sentence other than required by

the plea agreement.” Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012)

(quoting Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004)). Similarly, a

sentence may only be modified to the extent that it would not violate the plea

agreement “had it been the sentence originally imposed.” Pannarale v. State, 638

N.E.2d 1247, 1249 (Ind. 1994).

[27] The plea agreement fixed Madden’s aggregate executed sentence at seven years.

Other than a provision stipulating that the State and trial court could “consider

modification of [Madden] to Jefferson County” upon his completion of the

Therapeutic Community Program, the plea agreement is entirely silent

regarding any terms of probation. (Appellant’s App. p. 61). Moreover, no

language in the plea agreement even confers the trial court with discretion over

the probationary terms.

[28] It is well established that where the terms of probation are not contemplated by

the plea agreement, “[t]rial courts are free to impose administrative or

ministerial conditions as terms of probation.” S.S. v. State, 827 N.E.2d 1168,

1171 (Ind. Ct. App. 2005), trans. denied. Such conditions may include reporting

to a probation department, supporting dependents, and maintaining

employment. Disney v. State, 441 N.E.2d 489, 494 (Ind. Ct. App. 1982). In fact,

an offender “should reasonably expect that the county’s standard conditions [of

probation] may apply.” Freije v. State, 709 N.E.2d 323, 325 (Ind. 1999).

However, the court is precluded from levying “‘substantial obligations of a

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 17 of 18
 punitive nature’ if the plea agreement ‘is silent to such punitive conditions.’”

Jackson, 968 N.E.2d at 332 (quoting Bennett, 802 N.E.2d at 921). Home

detention is undisputedly a condition that “materially add[s] to the punitive

obligation.” Freije, 709 N.E.2d at 325-26. Because the plea agreement did not

specify that the trial court had the discretion to impose punitive conditions of

probation, I would find that it lacked the authority to order Madden to be

placed on home detention. See Berry v. State, 10 N.E.3d 1243, 1249 (Ind. 2014).

Even Madden’s verbal assent to the Terms of Probation is insufficient to permit

the trial court to vary the terms of the plea agreement by adding a punitive

obligation. Jackson, 968 N.E.2d at 332.

[29] Based on the foregoing, I would reverse and remand with instructions for the

trial court to revise Madden’s Terms of Probation.

Court of Appeals of Indiana | Opinion 39A01-1404-CR-173 | February 4, 2015 Page 18 of 18