MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Mar 07 2017, 9:33 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Deborah June Harris,                                     March 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1609-CR-2112
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D02-1503-F6-235



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017                Page 1 of 6
                                Case Summary and Issue
[1]   The trial court revoked Deborah Harris’s placement in home detention and

      ordered her to serve the entirety of her two previously suspended sentences in

      the Indiana Department of Correction. Harris appeals, raising one issue for our

      review: whether the trial court abused its discretion in revoking Harris’s

      probation. Concluding the trial court abused its discretion, we reverse its order

      requiring Harris to serve the entirety of her two previously suspended sentences

      in the Department of Correction and remand with instructions to continue

      Harris in home detention.



                            Facts and Procedural History
[2]   In July of 2015, Harris pleaded guilty to theft as a Level 6 felony and the trial

      court sentenced her to 545 days in the Department of Correction with 535 days

      suspended to probation.


[3]   In February of 2016, the State charged Harris with theft as a Level 6 felony and

      subsequently filed a petition seeking to revoke Harris’s probation in her 2015

      case, alleging Harris violated her probation by committing a new theft. After

      finding Harris violated a condition of her probation, the trial court ordered her

      to serve her previously suspended sentence in home detention. In July of 2016,

      Harris pleaded guilty to theft as a Level 6 felony in the 2016 case and the trial

      court sentenced her to 365 days in home detention to be served consecutively to

      her prior sentence.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017   Page 2 of 6
[4]   On August 2, 2016, the State filed another petition to revoke, alleging Harris

      violated the conditions of her home detention by failing to provide her

      probation officer with documentation verifying her whereabouts while

      permitted to be outside the home.


[5]   The trial court held an evidentiary hearing on Harris’s home detention violation

      on August 15, 2016. At the hearing, Gwyn Green, Harris’s probation officer,

      testified about three separate instances in which Harris failed to verify her

      whereabouts outside of the home. On July 16, 2016, Harris was granted

      permission to go shopping for groceries, but failed to provide Green with a

      receipt. The next day, Harris was granted permission to attend church, but

      again failed to provide Green any documentation. Green testified, “All we ask

      is just for a bulletin that, you know, show kind of proof that they were [there]

      and she didn’t have any documentation of that as well.” Transcript at 6.

      Finally, Harris failed to have a nurse sign and verify her whereabouts while she

      visited her terminally ill husband at the Rehabilitation Hospital of Indiana.

      Harris gave Green a signed timesheet verifying when she visited her husband,

      but when Green called the hospital, Green found the names on the timesheet

      were not employees of the hospital. Green also testified she was aware Harris

      suffers from dementia and congestive heart failure.


[6]   Harris also testified at the hearing and admitted she violated the rules of home

      detention. To clarify her violations, Harris stated she went shopping at Dollar

      General near her home on July 16, but misplaced the receipt. On July 17,

      because Green would not allow her to attend her normal church as it is too far

      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017   Page 3 of 6
      from her home, Harris attended a different church near her home but also

      misplaced the church bulletin she picked up. In regard to her failure to have a

      nurse from the Rehabilitation Hospital of Indiana verify she visited her

      husband, Harris testified she simply had the wrong people sign her paperwork.

      She stated she is permitted to visit her husband most days from 3:00 p.m. until

      6:00 p.m., which is the time during which her husband undergoes dialysis

      treatment. As Harris later discovered, the medical personnel administering her

      husband’s dialysis were not employees of the Rehabilitation Hospital of

      Indiana, and for whatever reason, their signatures were not acceptable to

      Green.


[7]   At the conclusion of the hearing, the trial court revoked Harris’s placement in

      home detention and remanded her to the Department of Correction to serve the

      remaining 774 days of her previously suspended sentences. Harris now

      appeals.



                                Discussion and Decision
[8]   Initially, we note the standard of review on appeal from the revocation of direct

      placement in home detention mirrors that for revocation of probation. Cox v.

      State, 706 N.E.2d 547, 549 (Ind. 1999). “Probation is a matter of grace left to

      trial court discretion, not a right to which a criminal defendant is entitled.”

      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). To revoke a defendant’s

      probation, the trial court must engage in a two-step process. Woods v. State, 892

      N.E.2d 637, 640 (Ind. 2008). First, the trial court must make a factual

      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017   Page 4 of 6
       determination that a violation of a condition of probation actually occurred. Id.

       If a violation is proven, then the trial court must determine if the violation

       warrants revocation of the probation. Id. A trial court’s sentencing decision for

       probation violations is reviewed for an abuse of discretion. Prewitt, 878 N.E.2d

       at 188. An abuse of discretion occurs where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court. Id.


[9]    Harris argues the trial court abused its discretion in revoking her placement in

       home detention and ordering her to serve the remaining balance of her

       sentences in the Department of Correction. We agree.


[10]   We acknowledge Harris admitted her violations1 and that a “single violation of

       the conditions of probation is sufficient to support the [trial court’s] decision to

       revoke probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005),

       trans. denied. However, under the facts and circumstances reflected in the

       record, including Harris’s dementia and congestive heart failure, her desire to

       visit her terminally ill husband in the hospital, the minor violations committed,

       and the severity of the trial court’s sentence, we conclude the trial court abused

       its discretion in finding her violations warranted serving 774 days in the




       1
         We note the harmless nature of Harris’s violations. Green did not testify that Harris left home detention
       without permission for long periods of time or that she doubted Harris actually visited the hospital, church,
       or the store, only that Harris was occasionally late returning home and failed to produce documentation
       verifying her whereabouts. For someone suffering from dementia, her struggles with keeping schedules and
       remembering probation rules should hardly come as a surprise. We do not wish to excuse her actions as she
       is on home detention for committing theft and must abide by the rules; however, we do not consider it an
       efficient use of the resources of the State of Indiana to remand an elderly woman suffering from dementia to
       the Department of Correction for such minor violations.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017               Page 5 of 6
       Department of Correction. See Ripps v. State, 968 N.E.2d 323, 325-26 (Ind. Ct.

       App. 2012) (concluding that in light of defendant’s medical condition, the

       technical nature of the probation violation, and the fact defendant admitted to

       violating the terms of his probation, the trial court abused its discretion in

       ordering defendant to serve the remainder of his suspended sentence in the

       Department of Correction).



                                               Conclusion
[11]   We conclude the trial court abused its discretion in revoking Harris’s placement

       in home detention. Accordingly, we reverse the trial court’s order that Harris

       serve the remaining 774 days of her previously suspended sentences in the

       Department of Correction and remand with instructions for the trial court to

       continue Harris in home detention.


[12]   Reversed and remanded.


       Barnes, J., concurs.


       Kirsch, J., dissents.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2112 | March 7, 2017   Page 6 of 6
