MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Jan 24 2019, 9:45 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Hanson                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary L. Taylor,                                          January 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-599
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Samuel R. Keirns, Magistrate
                                                         Trial Court Cause No.
                                                         02D06-1708-F5-232



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019              Page 1 of 10
[1]   Gary L. Taylor (“Taylor”) appeals the trial court’s order revoking his probation

      and ordering him to serve his six-year sentence in the Indiana Department of

      Correction (“the DOC”).


[2]   We affirm.


                                      Facts and Procedural History
[3]   In October 2017, Taylor pleaded guilty to Count I, criminal confinement1 as a

      Level 5 felony; Count II, domestic battery with a previous domestic battery

      conviction2 as a Level 6 felony; and Count V, resisting law enforcement3 as a

      Class A misdemeanor.4 Pursuant to his plea agreement, the trial court

      sentenced Taylor to six years for Count I, three years of which were to be

      served on home detention with Allen County Community Corrections

      (“Community Corrections”) and three years suspended to probation. The trial

      court also sentenced Taylor to two years for Count II and one year for Count V

      and ordered the sentences for all three convictions to be served concurrently.


[4]   Community Corrections approved Taylor’s participation in the home detention

      program on October 30, 2017, only after Taylor’s friend Maria agreed that he




      1
          See Ind. Code § 35-42-3-3(b)(1)(C).
      2
          See Ind. Code § 35-42-2-1.3(b)(1)(A).
      3
          See Ind. Code § 35-44.1-3-1(a)(3).
      4
       While the State reports that Taylor also pleaded guilty to Count III, a second count of Level 6 felony
      domestic battery, and Count IV, Level 6 felony strangulation, Appellee’s Br. at 5, we note that the trial court
      dismissed those counts as part of the plea agreement. Appellant’s App. Vol. 2 at 36, 44.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019                      Page 2 of 10
      could serve the first two weeks of detention in her home. However, friction

      between Maria and Taylor arose when Taylor overstayed his welcome, leaving

      Maria to pay for his food, housing, and other living expenses. On November

      26, 2017, Maria told Taylor he could no longer stay in her home. The two

      fought, and county police officers were called about the domestic disturbance.

      Before leaving Maria’s home that night, Taylor called Community Corrections

      to alert them about the change in his housing situation, and a representative

      from Community Corrections ordered Taylor to report directly to the

      Community Corrections facility “to resolve this residential issue.” Tr. Vol. 1 at

      10.


[5]   As part of home detention, Taylor was required to wear an electronic GPS

      monitoring device (“ankle monitor”). Testimony at the revocation hearing

      revealed that Taylor did not, as ordered, go directly to Community Corrections.

      Community Corrections Officer Kevin McIntosh (“Officer McIntosh”) testified

      that his unit had tracked Taylor, via his ankle monitor, travelling from Maria’s

      home to a nearby housing addition where he “milled around” for some time.

      Id. at 9.


              [Taylor] then went to a gas station and walked across a large field
              and milled around there for a few minutes. Then he crossed
              over, I believe it was Maplecrest, over to the rear of a cemetery
              and was walking behind the cemetery. He then went to a church
              across the road and milled around the church, hid behind a
              dumpster it appeared for a few minutes, and then continued on
              across the road behind Galbraith’s Landscaping, along the creek,
              several hundred yards, I believe, off the road.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019   Page 3 of 10
      Id. at 9-10.


[6]   County police officers responded to the report of a domestic disturbance and,

      after finding Taylor by the creek, detained him. Officer McIntosh joined the

      county officers, and when he got about twenty feet away from Taylor, he could

      hear the beeping of Taylor’s ankle monitor. Officer McIntosh explained that

      the ankle monitor makes a beeping noise “whenever a message has been sent to

      it.” Id. at 10. A printout revealed that Community Corrections personnel had

      sent three messages to Taylor’s ankle monitor and had also tried to call him

      three times. Taylor explained that he did not answer the calls because he was

      on the phone with someone else at the time. Id. at 11-12. Before Taylor was

      taken into custody, police confiscated a black backpack and a small paring

      knife, which the police considered to be “a weapon”; Taylor had taken both

      items from Maria’s home without her permission. Id. at 12-13.


[7]   On November 27, 2017, the State charged Taylor with Class A misdemeanor

      unauthorized absence from home detention, a charge to which Taylor later

      pleaded guilty.5 Appellant’s Br. at 15. Over the following week, the State filed a

      petition to revoke Taylor’s placement in home detention, and the Allen County

      Probation Department filed a petition to revoke probation. The latter petition

      alleged that Taylor: (1) failed to maintain good behavior when he committed

      the new crime of unauthorized absence from home detention; and (2) failed to



      5
       Discussing this charge in his brief, Taylor initially stated, “As of the date of the contested hearing, [Taylor]
      had maintained his innocence and was preparing for a jury trial in that matter.” Appellant’s Br. at 12.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019                      Page 4 of 10
      maintain good behavior when he did not successfully complete home detention.

      Appellant’s App. Vol. II at 50.


[8]   During a February 2018 hearing on the petition to revoke his probation, Taylor

      argued that he had left his authorized residence, Maria’s home, only after

      Community Corrections ordered him to “walk down” to their offices. Tr. Vol. 1

      at 40-41. The evidence revealed that Taylor “milled around” a nearby housing

      addition, went to a gas station, walked around the back of a cemetery,

      wandered around a church, hid behind a dumpster for a few minutes, and then

      wandered along a creek. Id. at 9-10. Taylor admitted that he took a circuitous

      route to Community Corrections but testified that it was not his “intention to

      evade law enforcement.” Id. at 40. He claimed that he took that route because

      Maria had threatened him with a knife, and he was afraid she might continue to

      follow him. Id. at 38, 39.


[9]   The trial court found that, while Taylor was authorized to leave Maria’s home,

      he was not authorized to travel to the gas station or the church, nor was he

      authorized to stop behind the dumpster. Id. at 61-62. Furthermore, Taylor did

      not respond to the clear beeping of his monitor—notification that Community

      Corrections had sent messages to his monitor. Id. at 62. The trial court found

      that Taylor had violated the terms of both his Community Corrections and his

      probation, revoked Taylor’s participation in those two programs, and ordered




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019   Page 5 of 10
       him to serve his six-year sentence in the DOC. Taylor appeals only the

       revocation of his probation and his six-year executed sentence in the DOC.6


                                        Discussion and Decision
[10]   Citing to Indiana Appellate Rule 7(B), Taylor characterizes his issues as

       whether the revocation of his probation and the imposition of his six-year

       sentence were inappropriate in light of the nature of the offenses and the

       character of the offender. Appellant’s Br. at 4. We remind Taylor’s counsel that

       a trial court’s action in a post-sentence probation violation proceeding is not a

       criminal sentence as contemplated by Appellate Rule 7(B). Wooten v. State, 946

       N.E.2d 616, 622 (Ind. Ct. App. 2011) (citing Jones v. State, 885 N.E.2d 1286,

       1290 (Ind. 2008) (“A trial court’s action in a post-sentence probation violation

       proceeding is not a criminal sentence as contemplated by the rule. The review

       and revise remedy of App. R. 7(B) is not available.”)), trans. denied. Rather than

       the independent review afforded sentences under Appellate Rule 7(B), a trial

       court’s sentencing decisions for probation violations are reviewable using the

       abuse of discretion standard. Id. Thus, to challenge the trial court’s decision to

       revoke Taylor’s probation and to impose his suspended sentence, defense

       counsel needed to allege that the trial court abused its discretion. Counsel has




       6
         Taylor contends that his appeal “focuses entirely on what constitutes an appropriate sanction for [his]
       admitted violation.” Appellant’s Br. at 15 (emphasis added). Yet, one paragraph later, he contends that the
       revocation of his probation was inappropriate. Id. We address both claims.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019                  Page 6 of 10
       failed to do so. Moreover, even if counsel had raised such a valid claim, his

       arguments would not establish that the trial court abused its discretion.


[11]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

       App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.

       denied. “Courts in probation revocation hearings ‘may consider any relevant

       evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

       State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

       court to determine the conditions of a defendant’s probation and to revoke

       probation if the conditions are violated.” Id. Our court has said that “all

       probation requires ‘strict compliance’” because once the trial court extends this

       grace and sets its terms and conditions, the probationer is expected to comply

       with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

       (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

       Id.


[12]   Taylor first argues that, regardless of whether he violated a term of his

       probation, the “pre-emptive revocation of his probation before he was even

       placed on probation is inappropriate under these circumstances.” Appellant’s Br.

       at 18. We disagree. Our court has held that “a defendant’s probationary period

       begins from the date of his sentencing and a violation of the terms of his

       probation may occur even though he has not yet begun serving his sentence, let

       alone his probation.” Baldi v. State, 908 N.E.2d 639, 642 (Ind. Ct. App. 2009)

       (citing Baker v. State, 894 N.E.2d 594, 598 (Ind. Ct. App. 2008)); see also Waters

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019   Page 7 of 10
       v. State, 65 N.E.3d 613, 617 (Ind. Ct. App. 2016) (“[A] defendant can have his

       probation revoked prospectively and his suspended time imposed even before

       he begins the probation phase of his sentence.”) Accordingly, Taylor’s

       probation was subject to revocation regardless of whether he had begun to serve

       the probationary phase of his sentence.


[13]   Taylor’s probation required that he maintain “good behavior.”7 Appellant’s App.

       Vol. 2 at 50. Taylor’s admission that he pleaded guilty to Class A misdemeanor

       unauthorized absence from home detention constituted an admission that he

       was not maintaining good behavior. This factor alone provided proof by a

       preponderance of the evidence that Taylor had violated a condition of his

       probation.8 See Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (“One

       violation of a condition of probation is enough to support a probation

       revocation.”).


[14]   Where, like here, the trial court finds that a defendant has violated a condition

       of his probation, it may (1) continue the probation with or without modifying




       7
         While the terms of Taylor’s probation are not in the record before us, we believe that good behavior was a
       term of Taylor’s probation. The State alleged in its petition for probation revocation that Taylor violated the
       conditions of his probation when he “[d]id not maintain good behavior,” Appellant’s App. Vol. 2 at 50; Taylor
       did not dispute that maintaining good behavior was a condition of his probation.
       8
         Taylor argues that it was improper for the trial court to revoke his probation because: (1) his act of leaving
       the home was not “precipitated” by his behavior; (2) he was faced with the challenge of walking eight miles
       to the Community Corrections office, which was a long and complicated route; and (3) his explanation for
       his odd course of travel was consistent with his testimony that he feared Maria might try to follow him.
       Appellant’s Br. at 16-17. These arguments are a request that this court reweigh the evidence, which we cannot
       do. See Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009) (in determining whether trial court abused its
       discretion, we do not reweigh evidence).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019                    Page 8 of 10
       the probation conditions; (2) extend the probationary period for up to one year;

       or (3) revoke the probation and order the execution of all or part of the sentence

       suspended at the initial hearing. Ind. Code § 35-38-2-3(h). Here, the question is

       whether the trial court abused its discretion when it ordered Taylor to serve his

       entire six-year sentence. We find no abuse of discretion.


[15]   Taylor was allowed to participate in home detention only because his friend

       Maria had agreed that he could stay with her for the first two weeks of his home

       detention. Almost four weeks later, Taylor was not “apparently working,” was

       still living with Maria, and was contributing little toward the household

       payments.9 Tr. Vol. 1 at 62. Maria asked Taylor to leave, and he did so. It is

       true that Taylor took the effort to call Community Corrections. Nevertheless,

       he made the mistake of not going directly to their office. Furthermore, Taylor

       did not respond to either the beeping of his monitor or the telephone calls from

       Community Corrections personnel. The trial court noted that Taylor “did not

       respond to [Community Corrections’] attempts to communicate and verify the

       reasoning for [his] deviation in [his] route of travel to the point that

       [Community Corrections] had to dispatch officers in an attempt to locate [him]

       because [he was] not where [he was] supposed to be or doing what [he was]

       supposed to be doing.” Tr. Vol. 2 at 63-64.




       9
        The trial court heard testimony that Taylor was to start a new job two days after he was detained.
       However, speaking with Taylor, the trial court said, “[Y]ou weren’t apparently working and you weren’t
       apparently paying much and you weren’t apparently doing a whole lot.” Tr. Vol. 1 at 62.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019                Page 9 of 10
[16]   The Allen County Probation Office recommended that the trial court revoke

       Taylor’s probation and commit him to the DOC. Appellant’s App. Vol. 2 at 53,

       54. On appeal, Taylor has provided no evidence that the trial court abused its

       discretion when it ordered him to serve his suspended sentence. While it was

       within the trial court’s discretion to continue Taylor’s probation, with or

       without modifying the probation conditions, or to extend the probationary

       period for up to one year, we cannot say that the trial court abused its discretion

       when it ordered Taylor to serve his suspended sentence of six years in the DOC.


[17]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-599 | January 24, 2019   Page 10 of 10
