MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 08 2020, 9:47 am

this Memorandum Decision shall not be                                    CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        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
Jennifer A. Joas                                          Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana

                                                          Zachary R. Griffin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Thomas Kress,                                      April 8, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2567
        v.                                                Appeal from the Ripley Circuit
                                                          Court
State of Indiana,                                         The Honorable Ryan J. King,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          69C01-1609-F5-32



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020                Page 1 of 7
[1]   Within a month of receiving a six-year suspended sentence for Level 5 felony

      conspiracy to commit burglary, Andrew Kress violated probation by

      committing a new criminal offense – Level 6 felony escape – and using

      methamphetamine and marijuana. Kress admitted to these violations, and the

      trial court revoked five and one-half years of his suspended sentence and sent

      him to the Indiana Department of Correction (the DOC). On appeal, Kress

      argues that the trial court abused its discretion.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In September 2016, the State charged Kress in Ripley County with Level 5

      felony conspiracy to commit burglary, as well as three misdemeanor offenses.

      The State also filed a habitual offender enhancement a few weeks later. Then,

      after Kress failed to appear at a pretrial hearing in July 2017, a warrant was

      issued for his arrest, and the trial court permitted the State to add another count

      for Level 6 felony failure to appear.


[4]   On April 9, 2018, Kress entered into a negotiated plea agreement with the State,

      pursuant to which he agreed to plead guilty to conspiracy to commit burglary

      and the State agreed to the dismissal of the habitual offender allegation and the

      other counts. Additionally, the agreement provided for imposition of a six-year

      prison sentence suspended to supervised probation. The trial court accepted the

      plea and sentenced Kress accordingly on June 25, 2018.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020   Page 2 of 7
[5]   While the Ripley County charges were pending throughout 2017, Kress

      committed crimes in Decatur County (theft, forgery, neglect of a dependent,

      and escape) and Jackson County (driving while suspended). The various

      criminal causes out of Decatur County, along with a habitual offender

      enhancement, were resolved on March 5, 2018 through a joint plea agreement.

      Kress received an aggregate sentence of about nine years, with four years

      suspended to probation and five years executed on community corrections.

      Thus, at the time Kress was sentenced in the instant Ripley County case, he was

      already serving his sentence in Decatur County on home detention through

      community corrections.


[6]   On June 21, 2018, Kress was administered a drug screen by community

      corrections, which later returned positive for methamphetamine and THC.

      Thereafter, on July 12, 2018, Kress cut off his GPS monitor and fled Decatur

      County. On July 24, 2018, he was involved in a traffic stop in Bartholomew

      County and fled on foot. A new criminal charge was filed in Decatur County

      for Level 6 felony escape, along with a habitual offender enhancement.


[7]   In the instant Ripley County case, on July 30, 2018, the State filed a petition for

      probation violation hearing, alleging that Kress had violated the terms of

      probation by committing a new criminal offense (escape) and using illegal

      drugs. While this petition was pending, Kress pled guilty to the escape charge

      in Decatur County and admitted being a habitual offender. He was sentenced

      to an executed term of eight years in prison on November 19, 2018.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020   Page 3 of 7
[8]    On March 14, 2019, the probation hearing was held in this case. Kress

       conceded that he violated probation as alleged by committing felony escape and

       using methamphetamine and marijuana. He also admitted that he had been

       charged and convicted of an additional crime committed while on probation –

       resisting law enforcement in Bartholomew County. Kress testified that he was

       about to start the Recovery While Incarcerated Program (the RWI Program) in

       prison to address his drug problem. 1 Kress asked that the court revoke only two

       years of his six-year sentence and allow him to continue in the RWI Program.


[9]    The trial court revoked five and one-half years of Kress’s suspended sentence

       and ordered that time to be served in the DOC. The court ordered that after

       Kress serves three years, he may enroll in the RWI Program, at the conclusion

       of which the court would consider sentence modification following completion.

       Kress now appeals. Additional facts will be provided below as needed.


                                            Discussion & Decision


[10]   It is well established that 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). Once a trial court has exercised its

       grace by ordering probation rather than incarceration, the trial court has

       considerable leeway in deciding how to proceed. Id. Accordingly, a trial




       1
         Kress claimed to have had an untreated drug problem for twenty years. On cross-examination, Kress
       indicated that he had been using methamphetamine for three years and that he had lied when he reported no
       addiction issues to the probation officer for the presentence investigation report in 2018.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020                  Page 4 of 7
       court’s sentencing decisions for probation violations are reviewable for an abuse

       of discretion and reversible only where the decision is clearly against the logic

       and effect of the facts and circumstances. Id. “If the court finds the defendant

       has violated a condition of his probation at any time before the termination of

       the probationary period, and the petition to revoke is filed within the

       probationary period, then the court may order execution of the sentence that

       had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

       2007); see also Ind. Code § 35-38-2-3(h) (listing three sanctions that may be

       imposed upon the finding of a violation: (1) continue the person on probation

       with or without modification; (2) extend the probationary period; or (3) order

       execution of all or part of the sentence that was suspended at the time of the

       initial sentencing).


[11]   Kress asserts that the sanction imposed by the trial court for his admitted

       violations was “an illogical decision unsupported by the facts as presented at his

       probation revocation hearing.” Appellant’s Brief at 8. He directs us to his

       testimony at the hearing regarding his twenty-year history of drug use and

       claims that he never had an opportunity for real rehabilitation. Finally, noting

       that he was about to start the RWI Program while serving his eight-year

       sentence out of Decatur County, Kress argues that by not allowing him to

       engage in the RWI Program until three years into this sentence will “essentially

       unravel[] the opportunity provided to him in Decatur County.” Id. at 11.


[12]   The trial court considered Kress’s testimony at the probation hearing but

       observed that it was “a lot different” than it was at the original sentencing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020   Page 5 of 7
       hearing and that the “two don’t square.” Transcript at 21, 22. After questioning

       the credibility of this testimony, the trial court noted Kress’s “extensive criminal

       history” and characterized his new crime of escape as “pretty flagrant” because

       it occurred while he was on home detention and he “continued to run in

       Bartholomew County.” Id. at 23. The court continued:


               [Y]ou’ve proven yourself to be a very poor candidate for
               probation. Heck, you’re not even a good candidate for in-home
               detention …. If they can’t monitor you on in-home without you
               escaping by cutting off your bracelet, that was a very, very poor
               decision and it was furthered when you tried to resist in
               Columbus or you did resist, I guess, in Columbus. I don’t know
               what the problem is here, but given that you have criminal
               history that goes all the way back to 1995, I guess it’s not gonna
               be fixed here soon…. I don’t think [the RWI Program]’s gonna
               fix it. I’m actually a little bit surprised that you got that[.]”


       Id. at 23-24. Ultimately, the trial court revoked five and one-half years of

       Kress’s suspended sentence and allowed for his participation in the RWI

       Program after the successful completion of three years of his sentence. The

       court indicated that it believed this sanction appropriately balanced “both penal

       consequences as well as rehabilitation”. Id. at 27.


[13]   We cannot agree with Kress that the sanction imposed by the trial court is

       against the logic and effect of the facts and circumstances. Here, Kress

       originally received a fully suspended sentence for his Level 5 felony conspiracy

       to commit burglary conviction. This sentence was particularly lenient

       considering his criminal history, which, at the time, spanned twenty years and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020   Page 6 of 7
       included six felony convictions and at least ten misdemeanor convictions. His

       felony convictions include drug-related crimes (committed in 2000, 2009, and

       2010), forgery (2017), neglect of a dependent (2017), and escape (2017, from

       home detention). Within a month of being sentenced in this case and while on

       home detention for a conviction in Decatur County, Kress proceeded to

       commit another escape, use illegal drugs, and commit resisting law

       enforcement. These brazen violations show that Kress is ill suited for

       probation. Moreover, it is evident that the trial court did not find Kress’s

       testimony at the probation hearing to be particularly credible. In sum, we

       conclude that the trial court acted well within its discretion.


[14]   Judgment affirmed.


       Bradford, C.J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020   Page 7 of 7
