MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision                                Sep 09 2015, 8:31 am
shall not be regarded as precedent or
cited before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT                              ATTORNEY FOR APPELLEE
Donald E.C. Leicht                                  Gregory F. Zoeller
Kokomo, Indiana                                     Attorney General of Indiana
                                                    Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Kasey Hutchins,                                          September 9, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1503-CR-133
        v.                                               Appeal from the Howard Superior
                                                         Court;
State of Indiana,                                        The Honorable William C.
                                                         Menges, Judge;
Appellee-Plaintiff.                                      34D01-1207-FB-714




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 1 of 8
[1]   Kasey Hutchins appeals the revocation of his probation. He alleges the court

      abused its discretion by imposing the balance of his suspended sentence and

      erred in calculating the length of time that remained on his sentence. We affirm

      in part, reverse in part, and remand.


                                      Facts and Procedural History
[2]   In August 2012, the State charged Hutchins with Class B felony dealing in a

      controlled substance 1 after he helped a confidential informant obtain Saboxone.

      Hutchins entered a plea of guilty pursuant to an agreement that capped his

      sentence at fifteen years. The court imposed a fifteen-year sentence to be served

      consecutive to a sentence from another cause, and it gave Hutchins credit for

      “155 actual days or 310 credit days, day for day credit, served while awaiting

      trial and disposition in this matter.” (Appellant’s App. at 34.) It reserved the

      right to modify Hutchins’ sentence if he completed a therapeutic community

      program while in the custody of the Department of Correction (DOC).


[3]   In November 2013, Hutchins petitioned for sentence modification. He told the

      court he had completed a therapeutic community program and asked that the

      court suspend the remainder of his sentence. On December 19, 2013, the court

      did so and ordered Hutchins to serve the remaining time on “supervised

      probation.” (Id. at 50.) Hutchins was to report immediately upon release to

      Community Corrections. (Id.) As a condition of his probation, Hutchins was




      1
          Ind. Code § 35-48-4-2(a)(1) (2011).


      Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 2 of 8
      required to “successfully complete, and make satisfactory arrangements to pay

      for, the Howard County Re-entry Program.” (Id.)


[4]   On October 2, 2014, the State petitioned to revoke Hutchins’ suspended

      sentence because he was terminated from the Re-entry Program. Hutchins

      admitted violating the terms of his probation. The State and Hutchins

      recommended 2 the court impose the following punishment for the probation

      violation: “[Hutchins’] suspended sentence shall be executed as follows: Three

      (3) years in the Indiana Department of Corrections [sic] with the remainder on

      Community Corrections In-Home Detention.” (Id. at 64.)


[5]   Thereafter, the Probation Department recommended Hutchins “serve the entire

      suspended sentence in the Department of Corrections [sic], all of which shall be

      executed.” (Id. at 65.) The Probation Department so recommended because

      Hutchins “was given the chance to prove to the Court that he was able to follow

      rules and change his criminal thinking. However, he has failed to do so.” (Id.)

      The County Transition Program agreed with the Probation Department’s

      recommendation. (Id. at 67.)


[6]   At the conclusion of the revocation hearing the court said, in pertinent part:

              I see absolutely no reason to impose a sentence in connection
              with this case that is less what he received in 2007. Particularly



      2
        The Recommendation, which was signed by Hutchins, his counsel, and the deputy prosecutor,
      acknowledged “this is just a recommendation for the Court and the Court is not bound by this
      recommendation.” (App. at 64.)

      Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015        Page 3 of 8
              since he was offered the advantage of dealing with the re-entry
              program and all the benefits that successful completion of that
              would have brought with it, and the other issue that I have is that
              his failure in the re-entry program did not occur early in that
              program but it occurred after a relatively long period of time that
              involves behavior that he should have progressed through well
              before [he] committed the violation. Accordingly, I’m going to
              order the balance of the defendant’s sentence executed. He is
              obviously entitled to some credit time. I do not have access to
              how much time he has served during the period of time that he
              was on re-entry as a result of sanctions. Accordingly, I will
              calculate the credit time and put that in the sentencing order. I
              will give you the right, [Hutchins’ counsel], to object to my
              calculation and you can have a hearing on that so we’re not
              going to be bound, necessarily bound by the earlier determined
              sentence.


[7]   (Tr. at 21-22.) Then, in the written sentencing order, the court sentenced

      Hutchins “to the Indiana Department of Correction for the balance of the

      previously suspended sentence, with [sic] the Court finds to be 4419 days.”

      (Appellant’s App. at 69.) The court also gave “jail time credit in the sum of 125

      actual days or 250 credit days, day for day credit, served while awaiting

      disposition in this matter.” (Id.)


                                     Discussion and Decision
[8]   We first note the State has not filed a brief. When an appellee does not file a

      brief, we are not required to develop an argument on that party’s behalf. State v.

      Gilbert, 997 N.E.2d 414, 416 n.1 (Ind. Ct. App. 2013). Instead we “may reverse

      the trial court’s decision if the appellant establishes prima facie error—that is,



      Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 4 of 8
       error ‘at first sight, on first appearance, or on the face of it.’” Id. (citation

       omitted).


[9]    Hutchins argues the court abused its discretion by revoking all the suspended

       time that remained on his sentence.


               Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. It is within the
               discretion of the trial court to determine probation conditions
               and to revoke probation if the conditions are violated. In appeals
               from trial court probation violation determinations and
               sanctions, we review for abuse of discretion. An abuse of
               discretion occurs where the decision is clearly against the logic
               and effect of the facts and circumstances, or when the trial court
               misinterprets the law.


               Probation revocation is a two-step process. First, the trial court
               must make a factual determination that a violation of a condition
               of probation actually occurred. Second, if a violation is found,
               then the trial court must determine the appropriate sanctions for
               the violation.


[10]   Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (internal citations and

       quotations omitted). The selection of an appropriate sanction for violation

       depends on the severity of the probation violation. Id. at 618. On review, “we

       consider only the evidence most favorable to the judgment without reweighing

       that evidence or judging the credibility of the witnesses.” Woods v. State, 892

       N.E.2d 637, 639 (Ind. 2008).


[11]   Hutchins and the State agreed to recommend the court impose only three years

       in the Department of Correction, with the remainder of his time to be served
       Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 5 of 8
       through Community Corrections on in-home detention. However, the

       Probation Department and Transitions Program both disagreed with that

       suggestion.


[12]   Hutchins points to his “success” since being released from the DOC,

       (Appellant’s Br. at 9), but most of the information on which he relies to

       demonstrate his success comes from the “unsworn statement” Hutchins read to

       the court after the close of evidence. (Tr. at 18.) Unsworn statements are not

       “evidence” on which a court may base a judgment. See Smith v. State, 471

       N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984) (deputy prosecutor’s unsworn

       statement of medical expenses is insufficient to support restitution order), reh’g

       denied, trans. denied.


[13]   At the hearing on the State’s petition to revoke Hutchins’ suspended sentence,

       the court explained that it saw “absolutely no reason” to impose a shorter

       sentence, (Tr. at 21), because Hutchins already had been “offered the advantage

       of dealing with the re-entry program and all of the benefits that successful

       completion of that would have brought with it,” (id.), and his failure in that

       program had “occurred after a relatively long period of time,” (id.), and

       “involve[d] behavior that he should have progressed through well before [he]

       committed the violation.” (Id. at 22.) In light of the court’s explanation, we

       find no abuse of discretion in the court’s decision to order Hutchins to serve the

       remainder of his suspended sentence.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 6 of 8
[14]   Finally, Hutchins asserts the court miscalculated the amount of credit time to be

       applied against his sentence. The only discussion of this matter at the hearing

       was the court’s pronouncement that it did not have the information before it so

       the court would calculate the credit time after the hearing. The court entered an

       order that provided the “balance of the previously suspended sentence . . . to be

       4419 days.” (Appellant’s App. at 69.) The court also found Hutchins had “125

       actual days or 250 credit days” served while awaiting disposition of the

       probation revocation. (Id.)


[15]   Hutchins outlines the days to which he believes he is entitled, and he supports

       his argument with citations to the record that support his being incarcerated

       many of the additional dates he asserts he was incarcerated. (See Appellant’s

       Br. at 10-11.) However, when the court originally imposed his sentence on

       January 2, 2013, the court ordered it “served consecutively to the sentence

       imposed in cause number 34D01-0606-FA-422.” (Appellant’s App. at 34.) As

       we have not been directed to evidence of when Hutchins was released from that

       other sentence to begin serving the sentence herein, we cannot determine the

       number of days to which Hutchins is entitled. Accordingly, we must reverse

       the court’s finding and remand for a hearing to determine the time remaining

       on Hutchins’ sentence.


                                                 Conclusion
[16]   The court did not abuse its discretion when it revoked all of the time remaining

       on Hutchins’ suspended sentence. However, on the record before us, we


       Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 7 of 8
       cannot determine whether Hutchins received the credit time to which he was

       entitled. We accordingly affirm in part, reverse in part, and remand.


[17]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015   Page 8 of 8
