      MEMORANDUM DECISION                                                FILED
      Pursuant to Ind. Appellate Rule 65(D),                        Sep 09 2016, 8:17 am

      this Memorandum Decision shall not be                              CLERK
                                                                     Indiana Supreme Court
      regarded as precedent or cited before any                         Court of Appeals
                                                                          and Tax Court
      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
      Derick W. Steele                                         Gregory F. Zoeller
      Deputy Public Defender                                   Attorney General of Indiana
      Kokomo, Indiana
                                                               Paula J. Beller
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James R. Lunsford,                                       September 9, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1511-CR-2056
              v.                                               Appeal from the
                                                               Howard Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      William C. Menges, Jr., Judge
                                                               Trial Court Cause No.
                                                               34D01-1203-FB-206



      Kirsch, Judge.


[1]   James R. Lunsford (“Lunsford”) appeals the trial court’s order revoking his

      previously-suspended sentence for violation of the conditions of his re-entry


      Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016   Page 1 of 6
      program. He raises the following restated issue for our review: whether the

      trial court abused its discretion when it did not award him credit time for time

      spent incarcerated for violating the re-entry program when the trial court

      revoked his suspended sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 23, 2012, Lunsford pleaded guilty, pursuant to a plea agreement, to

      dealing in methamphetamine, a Class B felony, and in exchange, the State

      dismissed three additional counts. Pursuant to the plea agreement, Lunsford

      was sentenced to 4,380 days with 2,555 days executed in the Department of

      Correction and 1,825 days suspended to supervised probation. On June 29,

      2015, as a part of his probation, Lunsford appeared in court and signed a Re-

      Entry Program Participation Agreement, in which he agreed to participate in

      the Howard County Re-Entry Program for a maximum of three years, which

      included substance abuse treatment and counseling.


[4]   On July 1, 2015, Lunsford was taken into custody for being in indirect

      contempt of court as a result of violating the terms and conditions of the Re-

      Entry Program based on allegations that he violated a no-contact order with his

      wife. On August 26, 2015, an arrest warrant was issued for Lunsford for

      violations of the terms of the Re-Entry Program, and he was arrested on the

      same date. Lunsford failed to appear for a Re-Entry Program hearing and was

      arrested, pursuant to a bench warrant, on September 15, 2015. On September

      Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016   Page 2 of 6
      16, a case manager for the Re-Entry Program filed a notice of termination with

      the trial court stating that the Re-Entry Program intended “to terminate . . .

      Lunsford’s participation in the program due to absconding from the Howard

      County Re-Entry Court Program.” Appellant’s App. at 79. On the same date,

      the trial court issued an order terminating Lunsford’s participation in the Re-

      Entry Program, and the probation department filed a petition to revoke

      Lunsford’s previously-suspended sentence. At the fact-finding hearing on the

      petition, Lunsford admitted that he violated his probation. The trial court then

      found that the State had proven the violation by a preponderance of the

      evidence and ordered Lunsford to serve the balance of his suspended sentence,

      which was determined to be 1,825 days. Lunsford was given credit for forty-

      four actual days, or eighty-eight days as a result of day-for-day credit, that were

      served while awaiting disposition of the petition to revoke his suspended

      sentence. Lunsford now appeals.


                                     Discussion and Decision
[5]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). It is within the

      discretion of the trial court to determine probation conditions and to revoke

      probation if the conditions are violated. Id. In appeals from trial court

      probation violation determinations and sanctions, we review for abuse of

      discretion. Id. An abuse of discretion occurs where the decision is clearly



      Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016   Page 3 of 6
      against the logic and effect of the facts and circumstances, or when the trial

      court misinterprets the law. Id.


[6]   Lunsford argues that the trial court abused its discretion when it revoked his

      previously-suspended sentence as a result of his violation of the terms of his

      probation. Lunsford specifically asserts that it was an abuse of discretion for

      the trial court to not grant him credit for the time he spent incarcerated for

      sanctions resulting from his violations of the Re-Entry Program. He contends

      that he was entitled to this credit for time served because the Re-Entry Program

      was post-sentencing, and participants should receive credit for any time spent

      incarcerated during the program.


[7]   At the time Lunsford entered into the Re-Entry Program on June 29, 2015, he

      was on probation, and when he signed the participation agreement, he agreed

      to abide by all rules and conditions of the Re-Entry Program, which included,

      among other things, complying with the case plan, submitting to drug testing,

      and obeying all laws. Appellant’s App. at 74-75. The participation agreement

      stated that sanctions shall be given for violations of the Re-Entry Program, and

      such sanctions were set forth in a sanction schedule and could include

      termination from the program. Id. Lunsford initially violated his terms of the

      Re-Entry Program on July 1, 2015 and was taken into custody for that

      violation; he was subsequently found to have violated the terms of the Re-Entry

      Program two more times, and after the third violation, a notice of termination

      from the Re-Entry Program was filed with the trial court. After admitting the



      Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016   Page 4 of 6
      violations, the trial court ordered that Lunsford’s participation in the Re-Entry

      Program be terminated. Id. at 78.


[8]   Although Lunsford contends he was entitled to credit for the time he was

      incarcerated due to sanctions while participating in the Re-Entry Program, he

      fails to acknowledge the provision of the participation agreement in which he

      voluntarily and intentionally waived his right to earn credit time for any

      sanction under the Re-Entry Program. Paragraph nine of the participation

      agreement for the Re-Entry Program specifically stated, “Participant agrees to

      waive his right to earn credit time for any time spent in jail or otherwise

      confined to which he would otherwise be entitle[d] pursuant to Indiana law

      during participation in the Re[-]Entry Program.” Id. at 75. Lunsford was not

      eligible to earn credit for time served for any sanctions that occurred while he

      was participating in the Re-Entry Program; he was only eligible to begin

      earning credit for time served once his participation in the program was

      terminated on September 16, 2015. He was, therefore, only entitled to credit

      time from September 16, 2015, the date he was no longer participating in the

      Re-Entry Program until October 28, 2015, the date his probation was revoked.

      When the trial court revoked his suspended sentence, it did give him credit for

      forty-four actual days served while awaiting the disposition of the case. The

      trial court did not abuse its discretion in awarding credit time to Lunsford.1




      1
        In his brief, Lunsford discusses several cases to bolster his position that he was entitled to credit time for the
      time he spent incarcerated for sanctions under the Re-Entry Program. However, because we conclude that

      Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016                Page 5 of 6
[9]    Affirmed.


[10]   Riley, J., and Pyle, J., concur.




       he agreed, pursuant to the participation agreement, to waive any claim to credit time for sanctions while
       participating in the Re-Entry Program, we do not address these cases.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016           Page 6 of 6
