MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 09 2018, 5:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     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
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Courtney Woodard,                                        April 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1710-CR-2411
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1403-FD-193
                                                         34D01-1503-F6-242



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018         Page 1 of 7
                               Case Summary and Issues
[1]   Courtney Woodard was on probation in two separate cases with the terms set

      to run concurrently. Woodard subsequently violated probation in both cases

      and the trial court revoked his probation. The trial court ordered Woodard

      committed to the Indiana Department of Correction to serve the remainder of

      his sentence in one cause and tolled his probation in the second cause until his

      release from incarceration. Woodard appeals, raising two issues for our review:

      1) whether the trial court abused its discretion in tolling Woodard’s probation in

      the second cause until his release from incarceration in the first; and 2) whether

      the trial court improperly calculated his credit time. Concluding the trial court

      did not abuse its discretion or improperly calculate Woodard’s credit time, we

      affirm.



                            Facts and Procedural History
[2]   On March 26, 2014, the State charged Woodard, under cause number 34D01-

      1403-FD-193 (“Cause 193”), with possession of marijuana, a Class D felony.

      The State later amended the charging information to add the charge of dealing

      in a synthetic drug, also a Class D felony. On March 11, 2015, before

      Woodard’s trial in Cause 193, Woodard was arrested and charged with dealing

      in marijuana, possession of marijuana, and dealing in a synthetic lookalike

      substance, all Level 6 felonies; and possession of a synthetic drug lookalike

      substance, a Class A misdemeanor. The cause number for Woodard’s second

      set of offenses is 34D01-1503-F6-242 (“Cause 242”).

      Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 2 of 7
[3]   In Cause 193, a jury found Woodard guilty of possession of marijuana and the

      trial court sentenced him to 1,095 days—183 days served on home detention

      and the remaining 912 days suspended to probation. Woodard began serving

      this sentence on September 16, 2015. In Cause 242, Woodard pleaded guilty to

      possession of marijuana and the trial court sentenced him to 546 days of

      probation. The trial court ordered Woodard’s sentence under Cause 242 to run

      “concurrently . . . to any other sentence [Woodard] may be currently serving.”

      Appendix of Appellant, Volume 4 at 77. Woodard began serving his sentence

      under Cause 242 on March 4, 2016.


[4]   On August 17, 2017, the State filed a petition to revoke Woodard’s probation in

      both cases. The trial court held a fact-finding hearing on October 3, 2017, at

      which Woodard admitted to violating the terms of his probation. The trial

      court revoked Woodard’s probation and ordered him to serve the 912 days

      suspended under Cause 193 in the Department of Correction. The trial court

      also ordered Woodard to remain on probation under Cause 242, but “tolled”

      the probationary term until Woodard’s release from incarceration in Cause 193.

      Id. at 129. Woodard now appeals.



                                 Discussion and Decision
                                     I. Woodard’s Sentence
[5]   Woodard first argues the trial court improperly increased his sentence under

      Cause 242. Specifically, Woodard alleges the trial court, by tolling his sentence


      Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 3 of 7
      until his release from incarceration in Cause 193, improperly “exceed[ed] his

      maximum sentence under [Cause 242].” Brief of Appellant at 12.


[6]   A defendant is not entitled to probation; rather, it is a matter of grace left to the

      trial court’s discretion. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). A

      trial court’s sentencing decision in a probation revocation proceeding is subject

      to review for abuse of discretion. Podlusky v. State, 839 N.E.2d 198, 200 (Ind.

      Ct. App. 2005). An abuse of discretion occurs “where the decision is clearly

      against the logic and effect of the facts and circumstances.” Smith, 963 N.E.2d

      at 1112.


[7]   Indiana Code section 35-38-2-3(h) provides a trial court with three options

      when it has found a defendant violated the terms of his probation. The trial

      court may (1) “[c]ontinue the person on probation, with or without modifying

      or enlarging the conditions[,]” (2) “[e]xtend the person’s probationary period

      for not more than one (1) year beyond the original probationary period[,]” or

      (3) “[o]rder execution of all or part of the sentence that was suspended at the

      time of initial sentencing.” Ind. Code § 35-38-2-3(h). Following Woodard’s

      admission to violating probation, the trial court revoked his probation in Cause

      193 and ordered him to serve 912 days of his previously suspended sentence

      incarcerated in the Department of Correction. The trial court then continued

      Woodard on probation in Cause 242 but tolled the running of his probation in

      that cause until his release from incarceration. The trial court did not extend

      Woodard’s probationary period for more than a year, which would violate

      Indiana Code section 35-38-2-3(h)(2); rather, the trial court merely continued

      Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 4 of 7
      Woodard on probation under his original sentence. And although there is no

      express statutory authority permitting the tolling of a sentence, by its very

      nature, a person is not on probation while they are incarcerated and the trial

      court still possessed the authority to continue Woodard on probation under

      Cause 242 following his release from incarceration. See Hart v. State, 889

      N.E.2d 1266, 1271 (Ind. Ct. App. 2008) (“Given the rehabilitative purpose of

      probation, a process which can only be accomplished outside the confines of

      prison, it is axiomatic that one may not be simultaneously on probation and

      serving an executed sentence.”) (quotation omitted).


[8]   A trial court possesses great latitude in fashioning the terms of a probation

      violation sentence and will be reversed only when it has abused its discretion.

      See Ind. Code § 35-38-2-3(h). We view the trial court’s sentence as a valid

      exercise of its wide discretion in fashioning an appropriate sentence for

      Woodard’s probation violation. The trial court did not abuse its discretion in

      tolling Woodard’s probation in Cause 242 until his release from incarceration in

      Cause 193.


                                            II. Credit Time
[9]   Woodard also argues the trial court improperly calculated credit time in Cause

      242. Specifically, he alleges the trial court should have applied his time served

      incarcerated awaiting disposition for his probation violation to both Cause 193

      and Cause 242. Credit time is a matter of statutory right and trial courts have

      no discretion in awarding or denying such credit. Harding v. State, 27 N.E.3d


      Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 5 of 7
       330, 331-32 (Ind. Ct. App. 2015). The appellant bears the burden to show the

       trial court erred. Id. at 332.


[10]   Woodard was incarcerated for a period of thirty-one days prior to his probation

       violation hearing. At the hearing, the trial court revoked his probation under

       Cause 193 and ordered him to serve 912 days of his previously suspended

       sentence. The trial court also awarded him jail time credit of “31 actual days or

       62 credit days, served while awaiting disposition in this matter.” App. of

       Appellant, Vol. 2 at 211. Woodard asserts the trial court erred by failing to

       award him the same credit time under Cause 242.


[11]   “Credit time” means “the sum of a person’s accrued time, good time credit, and

       educational credit.” Ind. Code § 35-50-6-0.5(2). “Good time credit” means “a

       reduction in a person’s term of imprisonment or confinement awarded for the

       person’s good behavior while imprisoned or confined.” Ind. Code § 35-50-6-

       0.5(4). “A person who is not a credit restricted felon and who is imprisoned for

       a Level 6 felony or a misdemeanor or imprisoned awaiting trial or sentencing is

       initially assigned to Class A [credit time assignment].” Indiana Code § 35-50-6-

       4(a) (2014). A person who has a Class A credit time assignment earns one day

       of good credit time “for each day the person is imprisoned for a crime or

       confined awaiting trial or sentencing.” Ind. Code § 35-50-6-3.1(b) (2014).


[12]   Woodard is not serving a term of imprisonment under Cause 242; rather, he

       was ordered to remain on probation in that cause following his release from

       incarceration under Cause 193. The only term of imprisonment Woodard is


       Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 6 of 7
       serving, and is therefore able to apply credit time to, is Cause 193. Woodard

       cites to no authority, and we find none, entitling him to apply credit time to his

       probationary period. The trial court did not err in calculating Woodard’s credit

       time under Cause 242.



                                               Conclusion
[13]   The trial court did not abuse its discretion in sentencing Woodard nor did the

       court improperly calculate his credit time. Accordingly, we affirm.


[14]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1710-CR-2411 | April 9, 2018   Page 7 of 7
