      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any                                 Mar 30 2020, 10:21 am

      court except for the purpose of establishing                                     CLERK
                                                                                 Indiana Supreme Court
      the defense of res judicata, collateral                                       Court of Appeals
                                                                                      and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Tyler E. Burgauer                                        Curtis T. Hill, Jr.
      Muncie, Indiana                                          Attorney General of Indiana
      Samuel J. Beasley                                        Evan Matthew Comer
      Muncie, Indiana                                          Angela Sanchez
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Bryant L. Foust,                                         March 30, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1258
              v.                                               Appeal from the
                                                               Delaware Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Thomas A. Cannon, Jr., Judge
                                                               Trial Court Cause No.
                                                               18C05-1207-FD-97



      Kirsch, Judge.


[1]   Bryant Foust (“Foust”) appeals from the trial court’s order that lifted the stay of

      a previously-imposed sentence. Foust raises one issue for our review, which we

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020                     Page 1 of 8
      restate as whether the trial court violated his right to due process when it

      revoked his stayed sentence for failing to comply with the conditions of the

      stay.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 5, 2012, in underlying cause number 18C05-1207-FD-97 (“cause

      number FD-97”), Foust pleaded guilty to one count of operating a vehicle while

      intoxicated, as a Class D felony, and to an habitual substance offender

      enhancement. Foust was sentenced to an aggregate term of six years – three

      years for the operating while intoxicated count and an additional three years for

      the habitual substance offender enhancement. One year of the aggregate

      sentence was ordered executed in the Indiana Department of Correction

      (“DOC”), and the remaining five years were suspended to probation.

      Appellant’s App. Vol 2 at 50.


[4]   While serving his probation under cause number FD-97, Foust was charged

      with Level 5 felony dealing in methamphetamine in an unrelated Delaware

      County case under cause number 18C03-1504-F5-8 (“cause number F5-8”). On

      September 28, 2015, he pleaded guilty to the dealing count, and on October 22,

      2015, Foust was sentenced to four years executed in the DOC. Ex. at 44. The

      trial court recommended that Foust be placed in a DOC facility that provided

      purposeful incarceration through a therapeutic community. Id. Upon



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 2 of 8
      successful completion of the program, he could file a petition to modify his

      sentence. Id.


[5]   On June 5, 2015, the State filed under cause number FD-97 a petition to revoke

      Foust’s probation. A fact-finding hearing was held on October 26, 2015, and

      Foust admitted the allegations contained in the petition. The trial court found

      that Foust had violated the terms of his probation and ordered him to serve the

      previously-suspended five-year portion of his sentence. The trial court then

      stayed the sentence, pending Foust’s completion of the purposeful incarceration

      program (“PIP”), which he was ordered to participate in per the sentence he

      received in cause number F5-8. The trial court’s sentencing order in cause

      number FD-97 reads (in relevant part) as follows:


              The [five] years previously ordered to be served on supervised
              probation is [sic] ordered executed to be served at the Indiana
              Department of Correction which [five-year] sentence is stayed
              pending [Foust]’s completion of his executed sentence of
              Purposeful Incarceration through the Indiana Department of
              Correction Therapeutic Communities Program under Cause No.
              [F5-8] and following a modification of [Foust]’s sentence in that
              cause[, Foust] would be required to complete the Delaware
              County Forensic Drug Program as the condition of said [five-
              year] stayed sentence. Upon successful completion of said
              Forensic Drug Program, the Court will modify [Foust]’s sentence
              herein and close this cause with [Foust] being released from
              further supervision hereunder.


      Appellant’s App. Vol. 2 at 52.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 3 of 8
[6]   In October 2015, Foust was transferred to the Indiana Youth Center

      correctional facility (“IYC”), where he became indoctrinated into the hate

      group known as the Aryan Brotherhood. Foust was referred to the therapeutic

      community substance abuse program on November 24, 2015. He began the

      program in March 2016 but was terminated less than one month later after

      receiving a disciplinary report for belonging to a “Security Threat Group

      (“SGT”)[.]” Tr. at 15. Because of his involvement with an SGT, Foust was

      ineligible for a new referral to the program for six months following his

      violation. Foust received a second referral to the therapeutic community in

      March 2017, but he ultimately refused the program on his own volition.


[7]   While incarcerated, Foust’s membership in the Aryan Brotherhood resulted in

      multiple disciplinary violations. He received at least ten conduct reports while

      housed at IYC for incidents including possession of a controlled substance,

      engaging in unauthorized financial transactions, disorderly conduct, and staff or

      offender provocation. On September 5, 2017, Foust received a second

      disciplinary report for belonging to an SGT. The next day, prison officials

      referred Foust for a second substance abuse assessment to determine his

      eligibility for therapeutic community programming, but Foust refused the

      assessment. At some point during his incarceration, Foust renounced his

      membership in the Aryan Brotherhood.


[8]   On September 11, 2017, Foust was transferred for disciplinary reasons to the

      Correctional Industrial Facility (“CIF”). At CIF, Foust met with his DOC

      caseworker who advised him that he would be referred to the therapeutic

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 4 of 8
       community substance abuse program. For a third time, however, Foust

       declined the referral, requesting that he instead be removed from the referral list

       because his “[release] date was less than twelve months” away. Id. at 8. The

       caseworker noted in a report that Foust would “not have enough time

       remaining [in his sentence] to complete the program but [if he participated in

       the program nonetheless,] at least [he would] be on the right track of remaining

       sober.” Ex. at 26; Tr. at 15, 39.


[9]    Foust was released from prison on July 27, 2018, without successfully

       completing the therapeutic community substance abuse program. However, on

       July 24, 2018, three days before Foust’s release date, the State filed a motion

       under cause number FD-97 to vacate Foust’s stayed sentence. The State

       alleged that Foust failed to complete the required PIP for his sentence in cause

       number F5-8, and, thus, failed to comply with the trial court’s October 26, 2015

       sentencing order that was issued under cause number FD-97. Appellant’s App.

       Vol. 2 at 2.


[10]   The trial court held a fact-finding hearing on the matter, following which the

       court determined that the State proved Foust violated a condition of his stayed

       sentence. After a separate dispositional hearing, the court lifted the stay and

       ordered Foust to serve the remainder of his previously-stayed five-year sentence

       in the DOC. Foust now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 5 of 8
                                      Discussion and Decision
[11]   Foust argues that he was denied due process when the trial court lifted the stay

       of his previously-suspended sentence. Foust maintains that the trial court

       ordered him to serve his previously-suspended sentence because the court

       determined “he failed to successfully complete a [PIP] on a sentence [issued in]

       another court[, i.e., F5-8], which program he was not ordered to successfully

       complete in order to maintain his stay.” Appellant’s Br. at 6. Thus, according to

       Foust, he was “deprived due process of law.” Id.


[12]   Although Foust claims that his due process rights have been violated, his

       argument on appeal, essentially, is that, at the time he was sentenced under

       cause number F5-8, he was not informed that the stay of the previously-

       suspended five-year sentence under cause number FD-97 was conditioned upon

       his successful completion of the PIP. According to Foust, the stay of the

       previously-suspended sentenced was conditioned upon his serving his executed

       sentence under cause number F5-8, not his successful completion of the PIP. We

       disagree and conclude that Foust was not denied due process because the

       conditions of the stay of his previously-suspended sentence were clearly set

       forth in the trial court’s October 26, 2015 order, and he was informed of the

       conditions.


[13]   The trial court’s October 26, 2015 sentencing order required Foust to complete

       “his executed sentence of Purposeful Incarceration through the [DOC]

       Therapeutic Communities Program[.]” Appellant’s App. Vol. 2 at 52. Following


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 6 of 8
       the modification of that sentence, Foust would then be required to complete the

       Delaware County Forensic Drug Program, “as the condition of said [five-year]

       stayed sentence.” Id. Upon the successful completion of the drug program, the

       trial court would then “modify [Foust]’s sentence herein and close this cause

       with [Foust] being released from further supervision hereunder.” Id.


[14]   Foust refused to complete the PIP, which failure resulted in his being denied

       participation in the Delaware County drug program. As the trial court noted at

       sentencing (under cause number FD-97), “[T]hose two things were all

       conditions of the sentencing order dated October 26, 2015[,] the consideration

       of which was the stayed executed sentence. So, you have breached the bargain,
                                      1
       Mr. Foust[.]” Tr. at 58.


[15]   When the trial court merely suspends a sentence, the court can still place

       reasonable conditions on the defendant’s continued liberty. Sandy v. State, 501

       N.E.2d 486, 487 (Ind. Ct. App. 1986). Here, the trial court’s sentencing order

       was clear; Foust was well aware of the conditions of the stay of his previously-

       suspended sentence, and he failed to comply with the conditions. Accordingly,

       his right to due process was not violated when the trial court lifted the stay and

       ordered him to serve his previously-suspended sentence.


[16]   Affirmed.




       1
        We note that, at sentencing, the trial court recommended that Foust be placed in a therapeutic community
       program while serving his five-year executed sentence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020                 Page 7 of 8
Bailey, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020   Page 8 of 8
