      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 Mar 16 2016, 8:40 am

      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                       Gregory F. Zoeller
      Kokomo, Indiana                                          Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jason A. Jones,                                          March 16, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1508-CR-1207
              v.                                               Appeal from the Howard Superior
                                                               Court
      State of Indiana,                                        The Honorable William C.
      Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                               Trial Court Cause No.
                                                               34D01-1002-FB-175



      Mathias, Judge.


[1]   Jason A. Jones (“Jones”) appeals the order of the Howard Superior Court

      revoking his probation. On appeal, Jones presents two issues, which we restate


      Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016        Page 1 of 14
      as: (1) whether Jones was denied his right to a hearing before an impartial

      judge, and (2) whether the trial court improperly denied Jones credit for

      educational credit time he earned while incarcerated.


[2]   We affirm.

                                    Facts and Procedural History

[3]   In 2010, Jones was convicted of Class B felony dealing in methamphetamine

      and Class B misdemeanor visiting a common nuisance. Jones was sentenced to

      an aggregate term of fifteen years with ten years executed and five years

      suspended to probation. In 2013, Jones successfully petitioned the trial court to

      modify his sentence, and on April 11 of that year, the trial court ordered the

      remainder of Jones’s executed sentence to be suspended to probation.


[4]   Hardly three months later, on July 31, 2013, the State filed a petition to revoke

      Jones’s suspended sentence. Jones admitted that he violated the terms of his

      probation, and the court modified the terms of Jones’s probation to include a

      requirement that he successfully complete the court’s “Re-Entry” program.


[5]   On March 11, 2015, the case manager overseeing Jones in the Re-Entry

      program filed a petition to terminate Jones’s participation in the program for

      lying to a case manager. At the beginning of the initial hearing held that same

      day, the trial court referenced the behavior alleged to have been committed by

      Jones:


               [Y]ou’ve had a series of stories regarding pills that are extremely
               incredible, verging almost on the, you know, like excuses I get
      Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 2 of 14
        where somebody’s caught with drugs in their pocket and they
        come to court and they say well, they weren’t my pants. I find it
        very, very interesting that when somebody shows up at your
        house to do a pill count, the pills have been washed. I find it very
        interesting that when you’re supposed to be bringing your pills to
        Brian to be counted that all a sudden you lose the pill bottle in
        Krogers [sic] and then you find it. You know, it just doesn’t
        make any sense; however, I don’t have to concern myself with
        that. What I concern myself with is the fact that you were asked
        by Brian whether or not you told your service providers that you
        were a drug addict and you said to him, yes, every one of them.
        So you got a diagnosis from Kokomo Psychiatric Center.

                                               ***

        Stephanie writes a prescription for you. Stephanie was not told
        that you had a substance abuse issue. Stephanie was not told that
        you’d been convicted of drug related offenses. You came back,
        she said I need you to take a drug test and you left without taking
        the test and went to Brittany and told Brittany that you were
        changing from Stephanie because you had a prior relationship
        with somebody who worked in that office and so you weren’t
        comfortable going with Stephanie or apparently giving the
        required drug screens and you neglected to tell Brittany that you
        were a drug addict or that you’ve had any prior criminal history
        regarding drugs and then you flat-out lied to Brian about it.
        You’ve been in the program long enough to know that lying is
        not acceptable.


Tr. pp. 2-3. The trial court then advised Jones of the rights he had before he was

terminated from the Re-Entry program:


        Please be advised that you have certain rights in connection with
        that proceeding. You have the right to have a hearing in which
        the State must prove the allegations against you by a
        preponderance of the evidence. You have a right to be

Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 3 of 14
              represented by an attorney and if you cannot afford an attorney,
              one will be appointed to represent you at public expense. You
              have the right to confront, question and cross-examine the
              witnesses against you. You have the right to an opportunity to be
              heard, present evidence and to subpoena witnesses to come to
              court to testify in your defense. Do you understand those rights?


      Id. at 3-4. Jones responded in the affirmative and requested an evidentiary

      hearing on this matter, and the trial court appointed him counsel.


[6]   At the evidentiary hearing held on May 29, 2015, the State presented evidence

      that Jones had lied to his service providers regarding his substance abuse

      problem. The trial court then stated from the bench:

              I think the State has proved by a preponderance of the evidence
              that he has been deceptive and, therefore, we will show that the
              defendant is terminated from the Howard County Re-Entry
              Program. The court finds probable cause to believe that the
              defendant has violated the terms of his probation. He is to be
              held without bond pending further order of the court in
              connection with that. Probation Department is to be given 72
              hours to file a petition to revoke.


      Tr. p. 46. The State then filed a petition to revoke Jones’s probation that same

      day.


[7]   A probation revocation hearing was held on July 8, 2015. At this hearing,

      Jones admitted that he had violated the terms of his probation by being

      removed from the Re-Entry program. The trial court accepted this admission

      and set the matter for a dispositional hearing on July 22, 2015. At the


      Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 4 of 14
      dispositional hearing, Jones argued that he should be given a chance to

      participate in inpatient therapy. The trial court disagreed and stated:

              The problem I have is, Mr. Jones, is you have failed at the most
              intensive supervision that we have available in our community.
              And so the pleas to put you back into community supervision of
              some sort, is really suggesting that we put you on less supervision
              than you had while you were in Re-Entry, which says to me
              basically you will succeed or if you succeed on less supervision it
              is because you have a greater chance of not getting caught. Right
              off the bat you found yourself charged with a new crime in Cass
              County. We worked with that. And then we’ve had repeated
              issues since then. I don’t think there’s anything left that we can
              do in the community. Accordingly I’m going to impose the
              balance of your suspended sentence, which the court finds to be
              2,829 days, give you credit for 146 actual days or 292 days day-
              for-day credit served while awaiting disposition in this matter and
              as the, as the sanctions. He’s remanded to the custody of the
              Sheriff for transportation to the Department of Correction.


      Tr. p. 78.

[8]   Jones then requested that the trial court award him credit for a “6 month

      Therapeutic Community time cut” that Jones had received while in the custody

      of the Department of Correction as well as a “90 day time cut” he received for

      completing a vocational business technology program. Tr. pp. 72, 79. The trial

      court responded:


              That, I think, becomes a question is that a reduction or is it, I
              don’t think it’s a reduction of the executed sentence. I think it is
              in fact an advancement of the earliest possible release date and
              we trumped the heck out of that when we modified the sentence
              and brought him back. That made his earliest possible release
      Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 5 of 14
               date October of 2013 as opposed to however many years after
               that with the two reductions that he was otherwise on. It’s up to,
               as far as I’m concerned it’s up to the Department of Correction to
               determine what credit time he’s entitled to or his behavior while
               he’s in the Department of Correction in connection with this
               cause either before or after we modified the sentence.

       Tr. pp. 79-80. Jones now appeals.


                                      I. Right to Impartial Judge

[9]    Jones first claims that he was denied his right to an impartial judge, focusing on

       the comments made by the trial court at the initial hearing indicating that it

       believed the allegations of the petition. Jones claims that the trial court had pre-

       determined his guilt and that he was therefore denied due process of law.

       Jones’s claim fails for a variety of reasons.


[10]   First, Jones effectively “pleaded guilty” to the probation violation when he

       admitted to violating the terms of his probation. We have held before that the

       sole avenue for a defendant who has admitted or pled guilty to a probation

       violation to challenge a revocation of probation is through a post-conviction

       relief petition. Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005).

       Indeed, Indiana Post-Conviction Rule 1(1)(a)(5) specifically allows a defendant

       to allege that his or her probation was “unlawfully revoked.”


[11]   Even if a direct appeal were the proper venue to present this claim, Jones made

       no objection to the trial court’s comments that he now claims were

       inappropriate. To preserve a claim that a trial court judge was inappropriately

       biased against him, a defendant must object to or otherwise challenge the trial

       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 6 of 14
       court’s remarks. Garrett v. State, 737 N.E.2d 388, 391 (Ind. 2000). “Where a

       defendant fails to object or otherwise challenge a trial judge’s remarks, any

       alleged error is waived on appeal.” Id.; see also Mitchell v. State, 726 N.E.2d

       1228, 1235 (Ind. 2000) (“At trial, the defendant failed to object to these

       allegedly inappropriate comments by the judge. A failure to object at trial

       results in waiver of the issue on appeal.”), abrogated in part on other grounds by

       Beattie v. State, 924 N.E.2d 643 (Ind. 2010). Accordingly, Jones’s claims

       regarding the trial court’s comments are waived.


[12]   Jones contends that a claim of judicial bias may be raised even if no objection

       was raised at trial, citing Decker v. State, 515 N.E.2d 1129 (Ind. Ct. App. 1987),

       which in turn cited Kennedy v. State, 258 Ind. 211, 280 N.E.2d 611 (1972). In

       Kennedy, our supreme court refused to apply the waiver doctrine to incidents of

       improper judicial intervention, even where no objection was raised, because

       “[a] fair trial by an impartial judge and jury is an essential element in due

       process.” Kennedy, 258 Ind. at 218, 280 N.E.2d at 615. However, since Kennedy

       and Decker were decided, our supreme court has clearly held that an objection is

       required to preserve a claim of judicial bias. See Garrett, 737 N.E.2d at 391;

       Mitchell, 726 N.E.2d at 1235.


[13]   Furthermore, in Decker, the court simply applied the fundamental error

       exception to the general rule requiring a contemporaneous objection. See Decker,

       515 N.E.2d at 1132. Here, Jones does not set forth the standard of review for a

       claim of fundamental error or develop an argument under this standard.

       Instead, after quoting the trial court’s comments, which he claims indicates that
       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 7 of 14
       the trial court had predetermined his guilt, Jones argues that “the Trial Court

       was not impartial, and Jones was denied a fair trial in violation of his rights to

       due process. This denial of due process was not ‘cured’ when Jones pled True to

       a later probation violation.” Appellant’s Br. at 14. Any claim of fundamental

       error is therefore further waived for failure to present a cogent argument. See

       Hollingsworth v. State, 987 N.E.2d 1096, 1098-99 (Ind. Ct. App. 2013) (holding

       that defendant waived fundamental error claim where she failed to present

       cogent argument regarding fundamental error in brief), trans. denied; Absher v.

       State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (holding that the simple

       assertion of a legal conclusion without any cogent argument or citation to

       authority is insufficient to establish fundamental error).

[14]   Even if we were to consider Jones’s claim of fundamental error on the merits,

       he would not prevail. When the impartiality of the trial judge is challenged on

       appeal, we presume the judge is unbiased and unprejudiced. Perry v. State, 904

       N.E.2d 302, 307 (Ind. Ct. App. 2009), trans. denied. To rebut that presumption,

       the defendant must establish from the judge’s conduct actual bias or prejudice

       that places the defendant in jeopardy. Id. To assess whether the judge has

       crossed the barrier into impartiality, we examine both the judge's actions and

       demeanor. Id. at 307-08. Adverse rulings alone are insufficient to establish bias.

       Id. at 308. Furthermore, bias will rarely, if ever, be found on the face of rulings

       alone because the defendant must show an improper or extra-judicial factor or

       such a high degree of favoritism that a fair judgment was impossible. Id.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 8 of 14
[15]   Here, at the initial hearing, the trial court discussed Jones’s alleged behavior,

       including his claims that he had lost his prescription medications and lied to his

       service providers. However, immediately after this, the court advised Jones of

       his rights, including that the State was required to prove that he violated the

       terms of the court’s Re-Entry program, that he had the right to cross-examine

       the State’s witnesses, and that he had the right to present evidence in his

       defense. The court then noted it had probable cause to believe that a probation

       violation had occurred, thereby justifying holding Jones in custody until this

       could be determined. See Johnson v. State, 957 N.E.2d 660, 665 (Ind. Ct. App.

       2011) (noting that the U.S. Supreme Court has held that probationers are

       entitled to a preliminary hearing in order to determine whether there is probable

       cause to believe that the probationer violated the terms of his probation) (citing

       Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471,

       485 (1972)). We therefore agree with the State that the trial court’s remarks on

       Jones’s alleged behavior can be seen as simply explaining the trial court’s

       finding of probable cause. The remaining remarks referred to by Jones are

       simply rulings by the trial court, which are insufficient to support his claim of

       bias. See Perry, 904 N.E.2d at 307.


[16]   Nor do we agree with Jones that the trial court’s probable cause determination

       equates to predetermining his “guilt” prior to the evidentiary hearing. Jones is

       simply incorrect in claiming that “probable cause” and “preponderance of the

       evidence” are effectively equivalent. See Heaton v. State, 984 N.E.2d 614 (Ind.

       2013) (holding that trial courts are required to use a preponderance of the


       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 9 of 14
       evidence standard in determining whether a probationer has violated the terms

       of his probation, not whether probable cause exists to believe he has done so).

[17]   For the foregoing reasons, Jones has not established that the trial court was

       improperly biased against him.

                                         II. Credit Time Determination

[18]   Jones also claims that the trial court erred by failing to award him credit time

       for a “6 month Therapeutic Community time cut” and a “90 day time cut” he

       received for completing a vocational program. However, Jones provides no

       citation to any authority explaining or supporting his argument, so we have no

       idea on what authority Jones’s claim of credit time is based.1 Accordingly, we



       1
           The entirety of Jones’s argument on this issue provides:
                Lastly, Jones argues that the Trial Court improperly calculated and failed to document his credit
                time. The Trial Court’s “analysis” resulting in its credit-time grant is detailed on Tr. pp. 77-80.
                Particular attention is drawn to the Trial Court’s statement on Tr. p. 80:
                    It’s up to, as far as I’m concerned [it’s] up to the Department of Correction to
                    determine what credit time he’s entitled to or his behavior while he’s in the
                    Department of Correction with this cause either before or after we modified
                    the sentence.
                First, a sentencing order, including credit time, is an appealable issue. The Trial Court’s
                decision makes appeal “impossible” because it anchors no number that can be appealed. Jones
                had obviously earned credit time while in the Department of Correction when his sentence was
                first modified.
                Secondly, the Trial Court’s decision provides no guidance whatsoever to the Department of
                Correction. How can the Department of Correction[] read the credit-time number in the
                Sentencing Order and know whether it includes or doesn’t include credit time “either before”
                the date of the Sentencing Order. It can’t, and the Trial Court’s abdication of its responsibility to
                anchor an appealable Sentencing Order gives too great a risk that Jones (or any other defendant)
                will be denied credit in the Department of Correction[] earned “either before” the Sentencing
                Order.
                One assumes that denial of appealablity and/or denial of earned credit time would not be the
                intention of an impartial magistrate. One might assume this Court might wonder why a Trial
                Court should abdicate its obligation to anchor credit time and force cases appealing that issue
                into this Court.
       Appellant’s Br. at 14-15 (record citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016                 Page 10 of 14
       consider this argument waived. See Ind. Appellate Rule 46(a)(8)(a) (providing

       that an appellate argument “must contain the contentions of the appellant on

       the issues presented, supported by cogent reasoning. Each contention must be

       supported by citations to the authorities, statutes, and the Appendix or parts of

       the Record on Appeal relied on.”) (emphasis added); Donaldson v. State, 904

       N.E.2d 294, 301 (Ind. Ct. App. 2009) (citing Appellate Rule 46(a)(8)(a) in

       concluding that defendant waived appellate argument by failing to make a

       cogent argument supported by citation to authority).


[19]   In its response, the State treats Jones’s credit time argument as a claim for

       educational credit time under Indiana Code section 35-50-6-3.3(b), which

       provides in relevant part:

               (b) In addition to any educational credit that a person earns
               under subsection (a), or good time credit a person earns under
               section 3 or 3.1 of this chapter, a person may earn educational
               credit if, while confined by the department of correction, the
               person:
                    (1) is in credit Class I, Class A, or Class B;
                    (2) demonstrates a pattern consistent with rehabilitation; and
                    (3) successfully completes requirements to obtain at least one
                        (1) of the following:
                        (A) A certificate of completion of a career and technical or
                            vocational education program approved by the department
                            of correction.
                        (B) A certificate of completion of a substance abuse program
                            approved by the department of correction.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 11 of 14
                        (C) A certificate of completion of a literacy and basic life
                            skills program approved by the department of
                            correction.
                        (D) A certificate of completion of a reformative program
                            approved by the department of correction.

       I.C. § 35-50-6-3.3(b) (emphasis added). Assuming that the “time cuts” to which

       Jones refers are educational credits earned under this section, we address

       Jones’s argument, as we understand it.

[20]   Jones appears to argue that the trial court denied him the six months and ninety

       days credit he earned for completing certain educational programs while

       incarcerated. However, such credit time does not reduce a defendant’s sentence;

       it is instead subtracted from the “release date that would otherwise apply” to

       the defendant. Randolph v. Buss, 956 N.E.2d 38, 41 (Ind. Ct. App. 2011) (citing

       I.C. § 35-50-6-3.3(e)), trans. denied.


[21]   In Randolph, the defendant had earned 730 days of educational credit time, but

       at the time of his release on parole, the defendant had used only 558 of these

       days. Id. at 39. When he violated the terms of his parole and was sent back to

       prison, Randolph claimed that he was entitled to some of the remaining credit

       days he had earned. When the Department of Correction refused to do so,

       Randolph filed for a writ of habeas corpus. On appeal from the trial court’s

       denial to issue a writ of habeas corpus, we held that Randolph was not entitled

       to the unused credit time. We noted that the General Assembly had removed

       language from the governing statutes providing that the Department of

       Correction could not deprive an inmate of educational credit time. Id. at 40-41
       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 12 of 14
       (citing I.C. § 35-50-6-3.3). We therefore concluded that “[t]he legislature

       intended to give the Department of Correction discretion whether to deprive

       prisoners of credit time earned.” Id. at 41. Since some of the credit time he

       earned had been applied to give Randolph an earlier release on parole, the

       Department of Correction was within its discretion to deprive Randolph of the

       remaining unused credit time. Id.


[22]   It appears that a similar situation occurred here. In 2010, Jones was sentenced

       to an executed term of ten years. Assuming Jones received Class I credit time,

       his scheduled release date would have been in 2015—five years after his

       incarceration began.2 However, while he was incarcerated, Jones apparently

       earned the six months and ninety days credit time at issue, which would have

       been subtracted from his release date, placing his release date at some point in

       2014. However, prior to that, in 2013, Jones successfully petitioned the trial

       court to modify his sentence to suspend the remaining portion of his executed

       sentence to probation.

[23]   Thus, as in Randolph, at the time he was released from incarceration, Jones had

       not used all of his educational credit time. However, Jones did not successfully

       complete his probation, just like the defendant in Randolph who did not

       successfully complete his parole. As in Randolph, upon Jones’s return to prison,




       2
         See Ind. Code § 35-50-6-3(a)(b) (providing that, for a person convicted before July 1, 2014, a person assigned
       to Class I earns one day of good time credit for each day the person is imprisoned for a crime or confined
       awaiting trial or sentencing); Ind. Code § 35-50-6-4(a) (2008) (providing that an incarcerated person is
       initially assigned to Class I).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016             Page 13 of 14
       it will be within the discretion of the Department of Correction to determine

       whether Jones should receive credit for the unused portion of his educational

       credit time. See Randolph, 956 N.E.2d at 40-41. Accordingly, the trial court did

       not err in declining to give Jones credit for the educational credit time he had

       earned, as this decision rests with the Department of Correction.


                                                  Conclusion

[24]   Jones did not properly preserve his claim that he was denied his right to a

       hearing before an impartial judge. However, even on the merits, Jones’s claims

       that the trial court judge was biased against him fails. Also, Jones has not

       established that the trial court erred by declining to give him credit for

       educational credit time he earned while incarcerated.


[25]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1508-CR-1207 | March 16, 2016   Page 14 of 14
