MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 05 2020, 8:45 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone, IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Harrison, III,                                    February 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1548
        v.                                               Appeal from the
                                                         Madison Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Mark Dudley, Judge
                                                         Trial Court Cause Nos.
                                                         48C06-1611-FD-2293
                                                         48C06-1708-F3-1932



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020                Page 1 of 9
                                          Case Summary
[1]   Joseph Harrison III and the State entered into a plea agreement under which

      the State agreed to recommend to the trial court that Harrison be sentenced to

      ten years executed in the Department of Correction but that the sentence be

      stayed pending his successful completion of Veterans’ Court. The agreement

      also provided that if Harrison was terminated from Veterans’ Court, then the

      stay on the sentence would be lifted and he would have to serve all ten years in

      the DOC.


[2]   The State later filed a request to terminate Harrison’s participation in Veterans’

      Court based on, among other things, him being charged with new offenses.

      The trial court found that Harrison committed these new offenses and

      terminated him from Veterans’ Court. The court did not ask for argument as to

      sanctions, because it found that its “hands [were] tied” by the plea agreement.

      Without any objection from Harrison, the court ordered him to serve all ten

      years in the DOC.


[3]   Harrison now appeals, arguing that the trial court had discretion to order him to

      serve less than ten years in the DOC despite the language of his plea agreement.

      Harrison, however, did not ask to present any mitigating evidence or argue that

      he shouldn’t be ordered to serve all ten years in the DOC. Moreover, he does

      not tell us why the trial court should have sentenced him to less than ten years

      in the DOC. Accordingly, Harrison has not preserved this issue for review.

      We therefore affirm the trial court.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020   Page 2 of 9
                            Facts and Procedural History
[4]   In November 2016, the State charged Harrison with Class D felony nonsupport

      of a dependent and Level 6 felony nonsupport of a dependent in Cause Number

      48C06-1611-FD-2293 (“FD-2293”). On July 24, 2017, Harrison pled guilty to

      both counts. One week later, on July 31, the trial court sentenced him to two

      years, with 54 days executed (time served) and the balance suspended to

      probation.


[5]   The next day, August 1, the State charged Harrison with Level 3 felony

      possession of methamphetamine, Level 6 felony maintaining a common

      nuisance, Level 6 felony unlawful possession of a syringe, and Class A

      misdemeanor possession of a controlled substance in Cause Number 48C06-

      1708-F3-1932 (“F3-1932”).


[6]   In January 2018, the probation department filed a notice of probation violation

      in FD-2293, alleging that Harrison failed to report to the probation department,

      failed to pay probation fees, failed to pay child support, and failed to verify

      completion of vocational rehabilitation. Three months later, Harrison entered

      into a plea agreement covering both cause numbers. The agreement provides,

      in relevant part:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020   Page 3 of 9
              (3) Defendant shall plead guilty as charged in 1932 and admit the
              violations in 2293. Moreover, Defendant shall be evaluated for
              admission into Veterans Court[1] prior to sentencing.


              (4) At the time of taking of the guilty plea, and again at the time
              of the Defendant’s sentencing, the State will recommend as to the
              sentence to be imposed as follows:


              If Defendant is admitted into Veterans Court, then this Court
              shall enter judgments of conviction and sentence Defendant to
              ten (10) years to be executed at [the DOC]. However, this Court
              shall stay that sentence to allow Defendant an opportunity to
              complete Veterans Court.


              If Defendant is not admitted into Veterans Court, then this case
              shall be reset for trial. . . .


              If Defendant graduates from Veterans Court, then the sentence
              shall be stayed permanently. If Defendant is terminated from
              Veterans Court, then the stay on the sentence shall be lifted, and
              his sentence, ten (10) years to be executed at [the DOC], shall be
              imposed.


      Appellant’s App. Vol. II pp. 133-34.


[7]   Thereafter, Harrison admitted to violating his probation in FD-2293 and pled

      guilty as charged in F3-1932. Harrison was sentenced in both cause numbers in




      1
        “Veterans’ Court” means “a problem solving court focused on addressing the needs of veterans in the court
      system by: (1) bringing together substance abuse rehabilitation professionals, mental health professionals,
      local social programs, and intensive judicial monitoring; and (2) linking eligible veterans to individually
      tailored programs or services.” Ind. Code § 33-23-16-10.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020                 Page 4 of 9
      June 2018. The trial court sentenced Harrison in FD-2293 to 1 year and 311

      days of his previously suspended sentence and in F3-1932 to 8 years and 54

      days. The court ordered the sentences to be served consecutively, for a total

      sentence of ten years, but then stayed the sentence “pending [Harrison’s]

      successful completion of Veteran’s Court.” Id. at 73, 160. The court noted that

      if Harrison “is removed from Veteran’s Court for any reason, the stay will be

      lifted and the sentence shall be executed” in the DOC. Id.


[8]   Harrison was accepted into Veterans’ Court and started in July 2018. On

      March 18, 2019, the State charged Harrison with Level 6 felony strangulation,

      Level 6 felony criminal confinement, and Class A misdemeanor domestic

      battery in Cause No. 48C06-1903-F6-655 (“F6-655”).2 On March 22, the

      probation department filed a request to terminate Harrison’s participation in

      Veterans’ Court in FD-2293 and F3-1932. The probation department alleged

      that Harrison (1) submitted a positive urine drug screen for methamphetamine

      in July 2018, (2) failed to report to Veterans’ Court in July 2018, and (3) was

      charged with a new offense in F6-655. Then, on May 9, the State charged

      Harrison with Level 6 felony obstruction of justice and Class A misdemeanor

      invasion of privacy in Cause No. 48C06-1905-F6-1138 (“F6-1138”).3 The

      probation department filed an amended request to terminate Harrison’s




      2
          This case is still pending, with a jury trial scheduled for June 2020.
      3
          This case is also still pending, with a jury trial likewise scheduled for June 2020.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020           Page 5 of 9
      participation in Veterans’ Court, adding as a fourth reason that Harrison was

      charged with a new offense in F6-1138.


[9]   Thereafter, an evidentiary hearing was held on the issue of Harrison’s

      termination from Veterans’ Court in FD-2293 and F3-1932. Harrison argued

      that the State did not prove that he committed the offenses in either F6-655 or

      F6-1138. The trial court found that the State did not meet its burden with

      respect to F6-1138 but that it proved by a preponderance of the evidence that

      Harrison committed the offenses in F6-655.4 Tr. pp. 97-99. Accordingly, the

      court concluded that Harrison violated the conditions of Veterans’ Court by

      committing a new offense and therefore was no longer eligible to participate in

      it. The court said that it was not “going to ask for argument” as to sanctions

      because its “hands [were] tied by [the] plea agreement.” Id. at 101; see also id. at

      97 (“I’m not going to ask him for argument about sanctions because it’s, it’s

      []either or. There is no room. And so we’re only arguing about whether the

      State has met its burden of proof to either kick you out of Veteran’s Court or

      leave you there, right?”). Without any objection from Harrison, the court lifted




      4
        Harrison notes that the trial court’s written order suggests that it found that he violated the conditions of
      Veterans’ Court based on all four reasons listed in the amended request to terminate his participation in
      Veterans’ Court. See Appellant’s App. Vol. II pp. 32-33 (“Comes now the Court and finds Defendant
      violated the conditions of Veteran’s Court as follows: 1) failed to comply with participation agreement as
      more fully set out in the Notice of Termination Request filed 5-29-19.”). He highlights, however, that at the
      hearing, the court only found that he committed one of the four violations, that is, he committed the offenses
      in F6-655. Because the trial court found at the hearing that Harrison violated the conditions of Veterans’
      Court only by committing the offenses in F6-655, we find that the written order contains a scrivener’s error.
      And because Harrison concedes that the evidence is sufficient to prove that he committed the offenses in F6-
      655, see Appellant’s Br. p. 6, this scrivener’s error is harmless.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020                    Page 6 of 9
       the stay in FD-2293 and F3-1932 and ordered Harrison to serve all ten years in

       the DOC.


[10]   Harrison now appeals.



                                  Discussion and Decision
[11]   Harrison contends that the trial court “incorrectly believed that it had no option

       but to give the defendant the full sentence that had been stayed” in FD-2293

       and F3-1932 and therefore erred in ordering him to serve all ten years in the

       DOC. Appellant’s Br. p. 10. Citing Woods v. State, 892 N.E.2d 637 (Ind. 2008),

       Harrison claims that the trial court had discretion to order him to serve less

       than ten years in the DOC despite the language of his plea agreement and asks

       us to remand this case “with directions [for the trial court] to exercise its

       discretion.” Appellant’s Br. p. 7.


[12]   In Woods, the defendant was sentenced to twenty years, with five years executed

       and fifteen years suspended (with two years of probation). When the State filed

       a notice of probation violation, the State and the defendant entered into an

       agreement under which the defendant would be placed on “strict compliance”

       probation, meaning that any violation would “result in full backup of 15 years.”

       Id. at 639. Thereafter, the State filed a second notice of probation violation,

       alleging that the defendant failed to report for drug testing, failed to report to

       the probation department, and failed to make a good-faith effort to pay court

       fees. At the revocation hearing, the State reminded the trial court that the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020   Page 7 of 9
       defendant faced fifteen years but that it had agreed to offer him twelve. The

       defendant then asked the court if he could explain “why [he] missed.” Id. The

       court said why he missed didn’t matter because he was on strict-compliance

       probation. The court sentenced the defendant to twelve years.


[13]   On appeal, the defendant argued that the trial court’s refusal to allow him the

       opportunity to explain why he violated the terms of his probation denied him

       due process. Our Supreme Court held:


               We acknowledge that telling a defendant that he is on “strict
               compliance” is a dramatic way of putting him on notice that he is
               on a short leash and has been given one final chance to “get his
               act together.” Nonetheless due process requires that a defendant
               be given the opportunity to explain why even this final chance is
               deserving of further consideration.


       Id. at 641. Nevertheless, the Court concluded that the defendant was “not

       entitled to any relief” because “[n]either on direct appeal nor on transfer . . .

       d[id he] make any attempt to explain why he violated the terms of his

       probation” and “[m]ore importantly, [he] did not make an offer of proof to the

       trial court,” which is generally fatal to a claim. Id. at 641-42.


[14]   Harrison is not entitled to relief under Woods. In Woods, the defendant asked to

       explain why he missed but was not entitled to any relief on appeal because he

       did not make an offer of proof in the trial court or make any attempt on appeal

       to explain why he violated the terms of his probation. Unlike the defendant in

       Woods, here Harrison did not even ask to present any mitigating evidence or

       argue that he shouldn’t be ordered to serve all ten years in the DOC. Moreover,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020   Page 8 of 9
       he does not tell us why the trial court should have sentenced him to less than

       ten years in the DOC. Cf. Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct. App.

       2016) (reversing revocation of the defendant’s community-corrections

       placement based on his violation of a “zero tolerance” provision given the

       evidence that the defendant presented at the revocation hearing that he was in

       the hospital when he failed to report to community corrections). Accordingly,

       Harrison has not preserved this issue for review. We therefore affirm the trial

       court.


[15]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1548 | February 5, 2020   Page 9 of 9
