                                                                         FILED
                                                                    Jul 29 2016, 8:33 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                              Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P.                        Attorney General of Indiana
Huntington, Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Anthony A. May,                                            July 29, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           35A04-1603-CR-673
        v.                                                 Appeal from the Huntington
                                                           Superior Court
State of Indiana,                                          The Honorable Jeffrey R.
Appellee-Plaintiff.                                        Heffelfinger, Judge
                                                           Trial Court Cause No.
                                                           35D01-1012-FC-303



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016                       Page 1 of 8
                                           Case Summary
[1]   Indiana Code section 35-50-6-1 provides that when defendants complete their

      terms of imprisonment, they are released to parole or probation. Here, when

      Anthony A. May violated his probation, the trial court sentenced him to serve

      two years of his previously suspended sentence in the Indiana Department of

      Correction and ordered him to return to probation when he completed his

      sentence. When May later completed his sentence, the DOC released him to

      parole instead of probation. Although May complied with the terms of his

      parole, the probation department filed a petition to revoke his probation

      because he failed to submit to monthly drug tests (which was a condition of his

      probation but not his parole). The trial court found that May violated his

      probation and sentenced him to serve the balance of his previously suspended

      sentence in the DOC.

[2]   Because the trial court ordered May to return to probation when he completed

      his sentence and May concedes that he was ordered to return to probation, we

      find that May was, in fact, on probation when he was released from the DOC

      and therefore violated it by failing to submit to monthly drug tests. But May’s

      violation does not warrant revocation. Given that defendants are placed on

      parole or probation, the DOC placed May on parole, and May complied with

      the terms of his parole, it was reasonable for May not to report to probation

      before his release from parole. Accordingly, we find that the trial court abused

      its discretion in revoking May’s probation and sentencing him to serve the



      Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016      Page 2 of 8
      balance of his previously suspended sentence in the DOC. We therefore reverse

      the trial court and remand with instructions for May to return to probation.



                             Facts and Procedural History
[3]   In 2011, May was convicted of Class C felony nonsupport of a dependent child

      in Huntington Superior Court. The trial court sentenced him to eight years,

      with four years executed in the DOC and four years suspended to probation.

      May’s probation included the following condition:




      Appellant’s App. p. 44.1

[4]   In 2014, the probation department filed a petition to revoke May’s probation for

      failing to pay child support and to submit to monthly drug tests. May admitted

      that he violated his probation, and the trial court sentenced him to serve two

      years of his previously suspended sentence in the DOC. The trial court ordered

      that “[a]ll other terms of probation remain.” Id. at 89. And May admitted that

      the trial court told him that he would still be on probation when he completed

      his two-year sentence for violating his probation. Tr. p. 56.




      1
       Although the conditions of May’s parole did not include monthly drug tests, they prohibited him from
      being intoxicated and from using, possessing, or trafficking in a controlled substance. Ex. A.

      Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016                         Page 3 of 8
[5]   May was released from the DOC to parole in February 2015. See Ex. A

      (Conditional Parole Release Agreement); Tr. p. 48. May then reported on a

      weekly basis to his parole officer in Allen County. May took a drug test

      through his parole officer in March 2015, and it was negative. May, however,

      did not report to his probation officer when he was released from the DOC.

      Consequently, he did not take any drug tests through the probation department.

[6]   In May 2015, the probation department filed a second petition to revoke May’s

      probation for “fail[ing] to submit to any monthly drug tests since being released

      from Indiana Department of Correction[] on or about February 11, 2015.”2

      Appellant’s App. p. 102. At the probation-revocation hearing, May testified

      that when he was released from the DOC to parole in February 2015, the DOC

      told him that he was on parole, not probation.3 Noting that parole was a

      function of the executive branch and therefore had no effect on the terms of

      May’s probation, the trial court found that May violated his probation for

      failing to submit to monthly drug tests and sentenced him to serve the balance

      of his previously suspended sentence in the DOC.4




      2
        The State also alleged that May violated his probation for failing to pay child support, but the trial court did
      not find that May violated his probation for this reason. See Tr. p. 65. Therefore, we address only May’s
      failure to submit to monthly drug tests.
      3
       The State objected to some of May’s testimony on this point on hearsay grounds, and the trial court
      sustained the objection. Nevertheless, both parties mention in their appellate briefs that May claimed the
      DOC told him that he was being released to parole, not probation.
      4
       The trial court’s order actually provides that May must serve the “balance of [his] original sentence.”
      Appellant’s App. p. 107, 108 (abstract of judgment showing that May was sentenced to eight years,
      minus credit for the time he had already served). However, when a defendant is found to have violated
      probation, the court may “[o]rder execution of all or part of the sentence that was suspended at the time

      Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016                                Page 4 of 8
[7]   May now appeals.



                                  Discussion and Decision
[8]   May contends that the trial court abused its discretion in finding that he

      violated his probation for failing to submit to monthly drug tests and in

      revoking his probation and sentencing him to serve the balance of his previously

      suspended sentence in the DOC.

[9]   Probation revocation is a two-step process. First, the trial court must determine

      that a violation of a condition of probation actually occurred. Woods v. State,

      892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is proven, then the trial

      court must decide whether the violation warrants revocation of probation. Id.

      If the trial court finds that the probationer violated a condition of probation, the

      court has several options:

              (1) Continue the person on probation, with or without modifying
              or enlarging the conditions.


              (2) Extend the person’s probationary period for not more than
              one (1) year beyond the original probationary period.


              (3) Order execution of all or part of the sentence that was
              suspended at the time of initial sentencing.




      of initial sentencing.” Ind. Code § 35-38-2-3(h) (emphasis added). Four years were suspended at the
      time of May’s initial sentencing. Nevertheless, because we conclude that the trial court abused its
      discretion in revoking May’s probation, we do not need to address this issue any further.

      Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016                           Page 5 of 8
       Ind. Code § 35-38-2-3(h).

[10]   May first argues that he did not violate his probation because when he was

       released from the DOC in February 2015, the DOC told him that he was on

       parole, not probation. Indiana Code § 35-50-6-1 provides that when a

       defendant completes his term of imprisonment, he can be released in one of

       three ways:

               (a) Except as provided in subsection (d) or (e), when a person
               imprisoned for a felony completes the person’s fixed term of
               imprisonment, less the credit time the person has earned with
               respect to that term, the person shall be:


                        (1) released to parole . . .;


                        (2) discharged upon a finding by the committing court that
                        the person was assigned to a community transition
                        program and may be discharged without the requirement
                        of parole; or


                        (3) released to the committing court if the sentence
                        included a period of probation.


       (Emphasis added).

[11]   Here, the trial court specifically ordered May to return to probation when he

       completed his two-year sentence. And May admits that he was ordered to

       return to probation. Accordingly, when May was released from the DOC in

       February 2015, he was on probation. May therefore violated his probation by

       failing to submit to monthly drug tests.

       Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016        Page 6 of 8
[12]   But this does not mean that May’s probation should have been revoked. Even

       in the face of a probation violation, the trial court may nonetheless exercise its

       discretion in deciding whether to revoke probation. Woods, 892 N.E.2d at 641.

       For example, lack of volition is a factor for the trial court to consider when

       deciding whether to revoke probation. Id. (giving as example a probationer not

       reporting to his probation officer because he was in a coma in a hospital);

       Sullivan v. State, No. 16A01-1512-CR-2175, 2016 WL 3639909 (Ind. Ct. App.

       July 8, 2016) (concluding that the trial court abused its discretion in revoking

       the defendant’s community-corrections placement for failing to report to start

       home detention because the defendant was in a mental-health hospital on the

       day he was to report).

[13]   When defendants complete their terms of imprisonment, they are released to

       parole or probation. See Ind. Code § 35-50-6-1. When May was released from

       the DOC in February 2015, the DOC placed him on parole under a Conditional

       Parole Release Agreement. He saw his parole officer every week, took a drug

       test (which was negative), and was successfully discharged from parole in

       December 2015. Given that defendants are placed on parole or probation, the

       DOC placed May on parole and told him that he was not on probation, and

       May complied with the terms of his parole, it was reasonable for May not to

       report to probation before his release from parole. See Tr. p. 63 (May’s trial

       counsel explaining that she had never seen someone released to parole “when

       the Court’s Order states that you are to be released on probation”). Under these

       circumstances, we find that the trial court abused its discretion in revoking


       Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016     Page 7 of 8
       May’s probation and sentencing him to serve the balance of his previously

       suspended sentence in the DOC. We therefore reverse the trial court and

       remand with instructions for May to return to probation. See I.C. § 35-38-2-

       3(h).

[14]   Reversed and remanded.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 35A04-1603-CR-673| July 29, 2016   Page 8 of 8
