MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 22 2016, 8:32 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jacob P. Wahl Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Jenkins, August 22, 2016
Appellant-Defendant, Court of Appeals Cause No.
82A01-1512-CR-2152
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-0101-CF-47
Barnes, Judge.
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Case Summary
[1] Keith Jenkins appeals the revocation of his probation and the sentence imposed
upon that revocation. We affirm.
Issues
[2] The issues before us are:
I. whether there is sufficient admissible evidence to support
the revocation of Jenkins’s probation; and
II. whether the trial court abused its discretion in ordering
Jenkins to serve the remainder of his sentence in the
Department of Correction (“DOC”) and in calculating his
credit time.
Facts
[3] In 2001, Jenkins was convicted of two counts of Class A felony dealing in
cocaine. The trial court sentenced Jenkins to concurrent terms of forty-five
years executed and five years on probation. In September 2012, Jenkins filed a
petition for modification of his sentence. The petition was based upon
Jenkins’s documented serious health problems. Specifically, Jenkins suffers
from heart failure, requires extensive treatment, and is a heart transplant
candidate. On April 26, 2013, the trial court modified Jenkins’s sentence to
concurrent terms of twenty-four years, seven months, and twelve days. With
time served, this resulted in Jenkins’s release from the DOC on May 3, 2013.
The modification was conditioned upon Jenkins remaining on probation for
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five years, as provided in his original sentence. One of the terms of Jenkins’s
probation required him to obey all state laws.
[4] After release from the DOC, Jenkins moved to St. Louis, and his probation was
monitored by the State of Missouri. Jenkins received permission from his
probation officer to travel to Evansville for medical appointments for
specialized treatment of his heart condition. On December 11, 2014, Jenkins
drove to Evansville for one such appointment. After arriving in Evansville and
before going to his appointment, Jenkins went to the home of Joel Kennedy.
Kennedy is the cousin of an acquaintance of Jenkins’s, Larry Weatherspoon.
On that date, Kennedy’s home was under surveillance by Detective Tony
Johnson of the Evansville Police Department as part of a drug task force
investigation. In fact, police had already obtained a search warrant for the
home based upon suspected drug dealing occurring there. Detective Johnson
observed a man later identified as Jenkins enter the home carrying a dark duffel
bag.
[5] Approximately five minutes after Jenkins entered the home, Detective Johnson
and a SWAT team executed the search warrant. Detective Johnson saw a
duffel bag identical to the one Jenkins had brought into the home sitting on the
floor. The bag contained several bricks of marijuana, weighing over ten pounds
total, as well as baggies and digital scales. Evansville Police Detective Cliff
Simpson also participated in the search of the residence. He knew Jenkins from
prior investigations but did not expect him to be at Kennedy’s residence. The
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drug task force’s investigation had been focused solely upon Kennedy and
Weatherspoon.
[6] The State charged Jenkins with Level 5 felony dealing in marijuana.
Additionally, on January 5, 2015, the State filed a petition to revoke Jenkins’s
probation. On January 23, 2015, the trial court placed Jenkins on home
detention pending resolution of the petition to revoke; the order required
Jenkins to live in Evansville but gave him permission to leave home for medical
appointments.
[7] Before there was a hearing on the probation revocation petition, there was a
trial on the underlying criminal charge against Jenkins that resulted in a hung
jury. A probation revocation hearing was held on October 30, 2015. Jenkins
testified that he had gone to Kennedy’s house solely to rest and play video
games before going to his medical appointment and denied any involvement in
marijuana dealing. During rebuttal testimony, Detective Simpson mentioned
collecting a wheeled suitcase from the residence’s attic that smelled of
marijuana, in addition to the duffel bag. Apparently, the suitcase had not
previously been mentioned in police reports or during Jenkins’s criminal trial.
At the conclusion of this hearing the trial court took the matter under
advisement.
[8] On November 6, 2015, the trial court held a hearing and announced that it had
found by a preponderance of the evidence that Jenkins had violated his
probation. It revoked Jenkins’s probation and ordered him to serve five years in
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the DOC. It granted Jenkins credit for time served and good time credit for the
period between December 11, 2014 and December 23, 2014,1 but did not grant
Jenkins any credit time for his time on home detention since January 23, 2015.
Jenkins’s attorney objected that “one of the witnesses at that case changed . . .
well stated something new at the hearing that he never mentioned anywhere in
his affidavits or at his testimony at the prior trial. Out of the blue new evidence
came in.” Tr. p. 67. The trial court reaffirmed its ruling in light of this
objection. The State thereafter orally moved to dismiss the underlying criminal
case against Jenkins. Jenkins now appeals.
Analysis
I. Sufficiency of the Evidence
[9] Jenkins first contends there is insufficient admissible evidence to support the
revocation of his probation. Probation is a matter of trial court grace, not a
right to which a criminal defendant is entitled. Heaton v. State, 984 N.E.2d 614,
616 (Ind. 2013). “It is within the discretion of the trial court to determine
probation conditions and to revoke probation if the conditions are violated.”
Id. We review a trial court’s revocation of probation and any sanctions
imposed thereon for an abuse of discretion. Id. An abuse of discretion occurs if
a decision is clearly against the logic and effect of the facts and circumstances
before the trial court, or if it has misinterpreted the law. Id. The first step in the
1
This appears to represent time that Jenkins spent in jail following his arrest for Level 5 felony dealing in
marijuana.
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probation revocation process is determining whether a violation of a condition
of probation actually occurred. Id. The second step is determining the
appropriate sanction for a violation. Id.
[10] Tied into Jenkins’s sufficiency argument is his claim that the State improperly
introduced evidence during the probation revocation hearing that had never
been previously disclosed to Jenkins, either as part of the revocation
proceedings or the underlying criminal proceedings. Jenkins contends that this
violated his due process rights. The due process rights to which a probationer is
entitled before revocation may occur are: “(a) written notice of the claimed
violations of probation; (b) disclosure of the evidence against him; (c) an opportunity
to be heard and present evidence; (d) the right to confront and cross-examine
adverse witnesses; and (e) a neutral and detached hearing body.” Woods v.
State, 892 N.E.2d 637, 640 (Ind. 2008) (emphasis added).
[11] However, Jenkins did not contemporaneously object to any testimony or
evidence during the revocation evidentiary hearing. The only objection to the
evidence came at a hearing several days later, after the trial court had already
announced its ruling. The failure to object to evidence introduced during a
probation revocation hearing generally waives any claim of error. Marsh v.
State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004). Additionally, Jenkins fails to
specify in his brief precisely what evidence or testimony the State presented that
had not previously been disclosed to him; Jenkins’s belated objection also did
not specify the objectionable evidence. It would appear, as the State notes in its
brief, that Jenkins is complaining about Detective Simpson’s testimony
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regarding the wheeled suitcase found in the attic of Kennedy’s home.
However, by failing to specify what evidence he found objectionable or how it
prejudiced him, Jenkins’s argument on this point lacks cogency and is further
waived for this reason. See Howard v. State, 32 N.E.3d 1187, 1195 n.11 (Ind. Ct.
App. 2015) (citing Ind. Appellate Rule 46(A)(8)(a)).
[12] Waiver notwithstanding, and assuming that Jenkins’s argument is about the
evidence regarding the wheeled suitcase, we see no basis for reversing the
revocation of his probation. In order to revoke probation based on the
commission of a new crime, the State does not have to show that the defendant
was convicted of a new crime. Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.
App. 2015). It is sufficient if the State can demonstrate the commission of a
new crime by a preponderance of the evidence. Id. In fact, a defendant’s
probation may be revoked for commission of a new crime even if the defendant
was acquitted of having committed the offense, because of the lower standard
of proof for probation revocations. Thornton v. State, 792 N.E.2d 94, 99 (Ind.
Ct. App. 2003).
[13] If we disregard the evidence regarding the suitcase, there still is sufficient
evidence to support revocation based on Jenkins’s commission of a new crime.
Indeed, the evidence regarding the suitcase is irrelevant. The suitcase was not
directly tied to Jenkins. Rather, the State’s evidence against Jenkins focused
upon his carrying a duffel bag into Kennedy’s home, which was searched five
minutes after Jenkins entered the home, and following a drug task force
investigation into drug dealing there. The same duffel bag Detective Johnson
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saw Jenkins carry into the home was found to contain over ten pounds of
marijuana and other indicia of dealing, i.e. digital scales and plastic baggies.
Although officers had not expected to see Jenkins at the house, that does not
negate their testimony that he was in fact there and carried the duffel bag into
the house. And, even though the State failed to convince a jury that Jenkins
was guilty beyond a reasonable doubt of dealing in marijuana, that did not
preclude the trial court from finding by a preponderance of the evidence that he
had done so. See id. There is sufficient evidence to support the revocation of
Jenkins’s probation, even if we assume that the evidence regarding the wheeled
suitcase was inadmissible.
II. Sentence
[14] Jenkins also contends that, in light of his serious health concerns, the trial court
abused its discretion in ordering him to serve the remaining five years of his
sentence at the DOC. We will reverse the sanction imposed by a trial court
following a determination that a probation violation occurred only if the
defendant can establish that the decision is clearly against the logic and effect of
the facts and circumstances before the trial court, or if it has misinterpreted the
law. Heaton, 984 N.E.2d at 616. In light of the grace afforded in ordering
probation in the first place, trial courts have considerable leeway in deciding
how to proceed once a defendant has been found to have violated probation.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[15] We are fully cognizant of Jenkins’s serious health concerns, which have been
well-documented by the DOC. Indeed, before Jenkins’s sentence was modified
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in 2013, the DOC had assisted Jenkins in preparing a petition for medical
clemency; the fate of that petition is unclear, but in any event was essentially
rendered moot when Jenkins obtained his release from the DOC in May 2013.
However, that release represented a generous exercise of grace by the trial
court. When the trial court modified Jenkins’s sentence, it drastically cut his
original sentence of forty-five years executed to approximately twenty-four-and-
a-half years executed, which amounted to time served when including good
time credit. But Jenkins was not entirely free after the sentence modification, as
the trial court retained five years of the sentence to be served on probation.
[16] Despite this considerable exercise of grace in light of Jenkins’s health problems,
Jenkins violated the trial court’s trust in him. An unfortunate but reasonable
inference to be made from the evidence is that Jenkins utilized at least one
medical appointment while on probation as a “cover” for drug dealing. Jenkins
misleadingly states in his brief that his probation was revoked because he was
present in a common nuisance for approximately five minutes. This overlooks
the evidence most favorable to the judgment, which is that he carried a bag
containing over ten pounds of marijuana, along with scales and baggies, into
the home. Jenkins was not merely an innocent bystander when the SWAT
team executed the search warrant for the home. In sum, the trial court did not
abuse its discretion in ordering Jenkins to serve the entirety of his remaining
five-year sentence in the DOC.
[17] Jenkins also contends the trial court erred in not giving him any credit time,
either time served or good time credit, for the time he spent on home detention
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as a condition of release while awaiting resolution of the probation revocation
petition. Credit time is a matter of statutory right, and trial courts do not have
discretion in awarding or denying such credit. Harding v. State, 27 N.E.3d 330,
331–32 (Ind. Ct. App. 2015). Under Indiana Code Section 35-38-2.5-5(e) and
(f), a person confined to home detention as a condition of probation earns both
credit for time served and good time credit. Also, under Indiana Code Section
35-38-2.6-6, a person confined to home detention as part of a sentence executed
through a community corrections program earns both credit for time served and
good time credit.
[18] However, this court previously has held that a defendant placed on home
detention as a condition of release pending resolution of a probation revocation
petition was not entitled to any credit for time served upon revocation of
probation and imposition of sentence, pursuant to Indiana Code Section 35-50-
6-3. Senn v. State, 766 N.E.2d 1190, 1201-02 (Ind. Ct. App. 2002). That statute
applies to offenses committed before July 1, 2014, and awards varying levels of
“good time credit for each day the person is imprisoned for a crime or confined
awaiting trial or sentencing,” depending on the defendant’s class assignment. 2
As held in Senn and other cases, this statute does not allow an award of credit
time for time spent on home detention as a condition of pretrial release because
it is not “confinement.” Id. (citing Purcell v. State, 721 N.E.2d 220, 224 n.6 (Ind.
2
Additionally, prior to July 1, 2015, this statute only referred to an award of “credit time” for time spent in
confinement prior to sentencing, not “good time credit.” See I.C. § 35-50-6-3 (2014).
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1999)). Jenkins makes no argument that Senn was incorrectly decided with
respect to credit for time spent on home detention as a condition of release
pending resolution of a probation revocation petition. 3 We must conclude that
the trial court properly denied Jenkins’s request for an award of credit time for
the period he spent on home detention awaiting resolution of the probation
revocation petition.4 See id.
Conclusion
[19] There is sufficient admissible evidence to support the trial court’s revocation of
Jenkins’s probation, and its order directing him to serve the remaining five
years of his sentence in the DOC was not an abuse of discretion. Furthermore,
the trial court did not err by failing to award Jenkins any credit for time served
on home detention as a condition of his release pending resolution of the
probation revocation petition. We affirm.
[20] Affirmed.
Bailey, J., and Riley, J., concur.
3
The statute governing probation revocation actions is silent regarding how or whether to award credit time
for time a defendant spends in confinement or otherwise while awaiting final resolution of a revocation
petition. See I.C. § 35-38-2-3.
4
The General Assembly recently enacted a provision allowing a defendant awaiting trial to earn “one (1) day
of good time credit for every four (4) days the person serves on pretrial home detention awaiting trial.” I.C. §
35-50-6-3.1(f). This provision, however, did not go into effect until July 1, 2016. See P.L. 44-2016, § 9.
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Keith Jenkins v. State of Indiana (mem. dec.)
Combined Opinion