MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                            Jul 17 2017, 9:11 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Corey M. Gardner-Shepard,                                July 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1703-CR-661
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff                                       Menges, Judge
                                                         Trial Court Cause Nos.
                                                         34D01-1308-FA-626
                                                         34D01-1307-FB-520



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017                 Page 1 of 6
[1]   Corey Gardner-Shepard appeals the trial court’s order revoking his probation

      and ordering that he serve his previously-suspended sentence. Gardner-

      Shepard argues that the sanction for the violation is too severe and that the trial

      court erroneously calculated the credit time he is owed. Finding no error with

      respect to the sanction and that any other reviewable error was invited, we

      affirm.


                                                     Facts
[2]   On May 21, 2014, Gardner-Shepard pleaded guilty under two causes that were

      combined into one plea agreement to the following offenses: Class B felony

      unlawful possession of a firearm by a serious violent felon; Class D felony

      possession of a narcotic drug; Class A misdemeanor dealing in marijuana; and

      Class B felony dealing in cocaine or a narcotic drug. Appellant’s App. Vol. II

      p. 56. The trial court sentenced Gardner-Shepard to an aggregate term of 5,475

      days, with 4,380 executed and 1,090 suspended to probation; the trial court

      awarded Gardner-Shepard 619 days of credit time.


[3]   On July 25, 2016, Gardner-Shepard filed a petition to modify his sentence. The

      trial court granted the petition on September 8, 2016, placing Gardner-Shepard

      in the Community Transition Program on home detention, placing Gardner-

      Shepard in a re-entry program, and suspending the remainder of Gardner-

      Shepard’s sentence to probation. A specific provision of the Community

      Transition Program required Gardner-Shepard to successfully complete the trial

      court’s re-entry program.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017   Page 2 of 6
[4]   On January 12, 2017, the State filed a petition to revoke Gardner-Shepard’s

      probation because he withdrew from the re-entry program. At a February 2,

      2017, hearing on the petition to revoke, Gardner-Shepard admitted that he had

      withdrawn from the re-entry program. Consequently, the trial court determined

      that Gardner-Shepard had violated the terms of his probation.


[5]   On March 7, 2017, the trial court held a hearing regarding the sanctions to be

      imposed for the probation violation. It ordered Gardner-Shepard to serve 1,838

      days of his previously-suspended sentence. In calculating the amount of credit

      time Gardner-Shepard was due for the time he was incarcerated while awaiting

      disposition of the revocation proceedings, the trial court relied on Gardner-

      Shepard’s representations and awarded 60 days of credit time. Tr. p. 15-16.

      Gardner-Shepard now appeals.


                                     Discussion and Decision
[6]   Gardner-Shepard raises two arguments on appeal: (1) the order that he serve

      the balance of his previously-suspended sentence for the probation violation is

      too severe; and (2) the trial court erroneously calculated the amount of credit

      time to which he is entitled for the period of time he was incarcerated during

      the probation revocation proceedings.1




      1
        Gardner-Shepard also seems to argue that the trial court failed to award him credit time for time spent in
      the Department of Correction (DOC) between May 21, 2014, and his sentencing modification on September
      8, 2016. He may also be arguing that he is entitled to even more credit time because of his participation in a
      DOC program. Credit time to which he is owed during incarceration with the DOC, however, is for the
      DOC, rather than the trial court, to calculate and determine. See Ellis v. State, 58 N.E.3d 938, 941 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017                 Page 3 of 6
[7]   With respect to the sanction imposed by the trial court, we note that probation

      is a matter of grace left to the trial court’s discretion rather than a right to which

      a defendant is entitled. E.g., Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

      The trial court determines the terms and conditions of probation, and the trial

      court may revoke probation if the terms and conditions are violated. E.g.,

      Castillo v. State, 67 N.E.3d 661, 663-64 (Ind. Ct. App. 2017), trans. denied.

      Indeed, a trial court may revoke a defendant’s probation for violation of a single

      condition of his probation. E.g., Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct.

      App. 2015).


[8]   Here, it is undisputed that a condition of Gardner-Shepard’s probation was his

      participation with and successful completion of the trial court’s re-entry

      program. It is also undisputed that Gardner-Shepard withdrew from that

      program before completing it. Gardner-Shepard has a lengthy criminal history

      and has violated probation in the past. Under these circumstances, we find no

      error with respect to the trial court’s decision to revoke probation and order that

      Gardner-Shepard serve the balance of his previously-suspended sentence.




      App. 2016) (holding that trial court determines the initial amount of credit time at the time of sentencing;
      thereafter, it is for the DOC to determine any modifications to credit time), trans. denied. Furthermore, if
      Gardner-Shepard seeks to raise a judicial claim that DOC has failed to give him all credit time he is owed
      from his prior incarceration, he must demonstrate that he has exhausted all administrative remedies with the
      DOC for that credit time. See id. at 941 (defendant must exhaust all DOC administrative remedies before
      appealing to a court regarding credit time). Gardner-Shepard has made no showing or argument that he has
      done so. As such, we will not address his arguments related to credit time allegedly accumulated during his
      period of incarceration before his probation violation.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017               Page 4 of 6
[9]   With respect to the trial court’s calculation of the credit time Gardner-Shepard

      is owed for the time in which he was incarcerated while awaiting disposition of

      the probation violation proceedings, Gardner-Shepard argues that he was in jail

      awaiting disposition for 69 days, rather than the 60 days found by the trial

      court. The relevant portion of transcript reads as follows:


              Court:                     . . . [Gardner-Shepard is] given credit for 42
                                         actual days or 84 days day-for-day credit
                                         served while awaiting disposition in this
                                         matter. That is starting from the date of
                                         arrest on Petition to Revoke . . . going from
                                         January 24th . . . .


              Defense Counsel: Your Honor, Mr. Gardner-Shepard thinks
                               that he was incarcerated at Howard County
                               Jail since the 28th of December.


              Court:                     So he’s thinking he was in longer than [the]
                                         24[th]. So through January 5th would have
                                         been his CTP[2] time.


              Defense Counsel: Correct, Judge.


              Court:                     So we’d want to start his sentence then on
                                         January 6th. So . . . he’s given credit for 60
                                         actual days or 120 days day-for-day credit




      2
       “CTP” refers to the Community Transition Program, which Gardner-Shepard was serving on home
      detention. Earlier in the hearing, Gardner-Shepard’s attorney informed the court that “Mr. Shepard was on
      Community Corrections CTP until the 5th of January, 2016.” Tr. p. 13.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017             Page 5 of 6
                                         served while awaiting disposition in this
                                         matter.


                                                        ***


               Defense Counsel: Thank you, Judge.


       Tr. p. 15-16.


[10]   It is unclear from this record whether an error was, in fact, made—no exhibits

       related to Gardner-Shepard’s incarceration dates were admitted into evidence at

       the hearing. But even if an error was made, it was invited, as Gardner-

       Shepard’s attorney agreed that he had been on home detention through January

       5, 2016, and agreed with the trial court that sixty days of credit time was the

       appropriate amount owed to Gardner-Shepard. See Wright v. State, 828 N.E.2d

       904, 907 (Ind. 2005) (holding that a party may not take advantage of an error

       that he commits or invites); Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App.

       2016) (noting that invited error is not fundamental error). Therefore, we

       decline to reverse on this basis.


[11]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1703-CR-661 | July 17, 2017   Page 6 of 6
