                                                                                        FILED
                                                                                  Mar 13 2017, 8:57 am

                                                                                        CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ethan G. Bartanen                                         Curtis T. Hill, Jr.
      Salem, Indiana                                            Attorney General of Indiana
                                                                Caryn N. Szyper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Derrian Hampton,                                          March 13, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                88A04-1608-CR-1862
              v.                                                Appeal from the
                                                                Washington Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff.                                       Frank Newkirk, Jr., Judge
                                                                Trial Court Cause No.
                                                                88D01-1310-FB-700



      Kirsch, Judge.


[1]   After the State filed a petition for revocation of Derrian Hampton’s

      (“Hampton”) suspended sentence, alleging probation violations, Hampton and

      the State entered into an Agreement on Petition to Revoke Suspended Sentence

      (“the Agreement”). In the agreement, Hampton admitted to a probation

      violation and was ordered to serve the balance of a previously-suspended
      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                  Page 1 of 19
      sentence, and the State agreed to stay execution of the sentence for

      approximately six months. At the end of such time a review hearing would be

      held and, if Hampton had completed all terms and conditions of probation, the

      petition for revocation of suspended sentence would be dismissed. The trial

      court accepted the Agreement and entered an order. Following the review

      hearing, the trial court issued an Order on Violation of Probation, ordering

      Hampton to serve the previously-suspended sentence. The trial court denied

      Hampton’s Motion to Correct Error Alternatively Motion to Reconsider

      (“Motion to Reconsider”), and Hampton now appeals, raising three issues that

      we consolidate and restate as: Whether the trial court abused its discretion

      when it denied Hampton’s Motion to Reconsider.


[2]   We affirm in part, reverse in part, and remand.


                                  Facts and Procedural History
[3]   In November 2013, Hampton pleaded guilty to Class C felony aiding burglary.

      Appellant’s App. Vol. IV at 12. In June 2014, the trial court sentenced her to

      three years in the Indiana Department of Correction (“DOC”), with one year

      and 185 days suspended to probation. Hampton’s terms of probation required

      her to, among other things: obtain prior consent from the Washington County

      probation department before moving from her present address; notify the

      Washington County probation department of any change in address within

      twenty-four hours of such change; report in person to the Washington County

      probation department no less than once per month; not violate laws of the State

      of Indiana; pay $2,476 in restitution and $192 each month toward fines, fees,
      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 2 of 19
      and costs; submit to drug/alcohol screens upon demand; and not consume

      alcohol or any drug which has not been prescribed by a physician. Appellant’s

      App. Vol. VI at 24-25. Hampton’s term of probation began on December 15,

      2014.


[4]   On August 6, 2015, the State filed a Petition for Revocation of Suspended

      Sentence (“Petition for Revocation”), alleging that Hampton had violated the

      terms of her probation as follows: (1) she moved her residence from that last

      reported to the probation department, and her current residence was

      “unknown”; (2) she made no payments toward fees, costs, or restitution; (3) as

      of August 4, 2015, she failed to call the drug screen line 59 times “to see if she

      was to report to the Probation Department for a drug screen”; and (4) she

      appeared at the probation department on July 22, 2015, for a scheduled drug

      screen and failed a urine screen, which tested positive for Spice. 1 Id. at 32-33.

      The State asked the trial court to enter an order revoking Hampton’s suspended

      sentence.


[5]   On November 23, 2015, the parties appeared for a hearing on the State’s

      Petition for Revocation and tendered the Agreement to the trial court. In that

      Agreement, Hampton stipulated that she had violated the conditions of her

      probation by failing to call the drug screen line and that the sanction for this




      1
        After the State filed its Petition for Revocation of Suspended Sentence, pauper counsel was appointed on
      September 30, 2015, to represent Hampton. She was represented by counsel at the time of the execution of
      the Agreement and at all times relevant to this appeal.

      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                       Page 3 of 19
      violation was for her to serve the previously-suspended 550 days in the DOC,

      less credit days. The commitment was stayed until a June 13, 2016 review

      hearing (“Review Hearing”). Appellant’s App. Vol. VII at 8. The Agreement

      stated that, if at the time of the Review Hearing, Hampton had completed all

      terms and had paid all monetary obligations, the sentence would be withdrawn

      and, if the probation term had not elapsed, Hampton would remain on

      probation, subject to all original terms. If, on the other hand, Hampton had not

      completed all terms and obligations by the time of the Review Hearing, the

      sentence “shall be executed immediately . . . [and] Probation will be closed as

      unsuccessful.” Id. It was Hampton’s burden at that Review Hearing to show

      that all terms and conditions of probation had been met. Id. In the Agreement,

      the State also agreed to reduce Hampton’s monthly payment toward restitution

      and fees to “at least $100/month[,]” and the State agreed to an extension of

      those payments “until paid in full.” Id. The parties further agreed that “The

      Court has no authority to alter this [A]greement without the consent of the

      State and defendant.” Id.


[6]   At the hearing, the trial court asked Hampton a series of questions inquiring

      about whether she knew and understood the terms of the Agreement. She

      testified that she had not called the drug screen line as required and

      acknowledged that, pursuant to the terms of the Agreement, if she failed to

      complete terms and conditions of probation, her probation and suspended

      sentence would be revoked and “I go straight, a year and a half in prison.” Tr.

      at 2. The trial court asked Hampton whether she understood that if she decided


      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 4 of 19
      to sign the Agreement, she would not have a hearing or testimony or evidence

      concerning her violation of probation. She responded that she understood that

      consequence. Id. at 4. The trial court advised Hampton that the trial court

      would not have the authority to later change or alter the terms of the

      Agreement, such that she could not later assert “I shouldn’t have said that. I

      don’t want to do that now, I want to change it.” Id. The court asked Hampton

      if she understood, to which she replied, “Yes sir.” Id. The trial court

      reaffirmed that if it accepted the Agreement, there would be no formal hearing,

      no evidence, and no witnesses to hear or cross-examine; Hampton testified to

      her understanding that, by signing the Agreement, she was giving up such

      rights. Hampton testified that she was entering into the Agreement freely and

      voluntarily and that she was satisfied with her lawyer’s representation. The

      trial court asked Hampton whether it was true that, as stated in the Agreement,

      she failed to call the drug screen line, and she responded, “Yes.” Id. at 5. The

      trial court asked Hampton whether she had the ability to call the drug screen

      line, and she replied, “Yes.” Id. The trial court approved the Agreement and

      entered an order thereon. Appellant’s App. Vol. II at 9 (CCS entry reflecting

      entry of order in Record of Judgments and Orders).


[7]   On June 13, 2016, the parties appeared for the Review Hearing. At the hearing,

      the State stipulated that the parties had agreed, on February 11, 2016, to lower

      the monthly payment arrangement from $100 per month to $50 per month.

      Hampton’s testimony at the Review Hearing included that she had called the

      drug screen line, most, but not all, days. She testified that she knew where to


      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 5 of 19
      call and knew that she was required to call by 3:00 p.m., but on some occasions

      did not call by 3:00 p.m. because she “sometimes forgot.” Tr. at 16. With

      regard to her required payments toward costs, fees, and restitution, the evidence

      was that she owed $100 per month for December 2015 and January 2016, and

      she owed $50 per month for February through May. The evidence presented

      was that Hampton made no payment in December 2015, paid $40 in January

      2016, $140 in February 2016, nothing in March and April, and $25 in May,

      such that she had paid $205 of the required $400 that was owed for the months

      of December 2015 through May 2016. 2 Hampton agreed with the payment

      history. Id. at 24. That same day, the trial court issued an Order on Violation

      of Probation, determining that the evidence was that Hampton did not comply

      with the Agreement, as she did not call in by 3:00 p.m. on all dates, and she

      failed to make the payments that were required under her probation conditions.

      Noting that it lacked the authority to change the Agreement, the trial court

      ordered Hampton to serve 550 days in the DOC, less credit time.


[8]   The next day, Hampton filed her Motion to Reconsider. The trial court held a

      hearing on Hampton’s motion, at which counsel appeared and presented

      argument. Hampton’s counsel argued that: (1) Hampton had substantially




      2
        The original probation terms, entered in June 2014, state that Hampton owed $192 per month toward fines,
      fees, and costs. Appellant’s App. Vol. VI at 24. As of August 2015, Hampton was alleged to have made no
      payments toward fees and costs, nor toward restitution. Id. at 32. In November 2015, the parties executed
      the Agreement, reducing the required monthly payment amount toward restitution and fees to “not less than
      $100 per month,” and Hampton was to make her first payment in December 2015. Id. Vol. VII at 8. It is not
      clear whether Hampton paid any amount in the month of November 2015.

      Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                     Page 6 of 19
complied with the Agreement, as she called the drug screen line on most days,

and on the days that she missed the 3:00 p.m. deadline, she called the front desk

of the probation department; (2) Hampton did not receive notice that she was

not in compliance with her calls to the drug screen line; and (3) notice would

have allowed counsel to obtain Hampton’s phone records and records from the

probation department, before the Review Hearing. Counsel also argued that

Hampton was denied due process because the Agreement took away the trial

court’s discretion as to what sentence to impose for the violation, and it

improperly shifted the burden to her. The State argued in response that: (1) the

Agreement – in which Hampton admitted to violating her probation and was

ordered to serve a 550-day previously-suspended sentence, which the State

agreed to stay if she complied with probation – was validly reached and

executed; (2) Hampton and her counsel knew that if Hampton did not comply

with all conditions of probation by the June 2016 Review Hearing that she

would be ordered to serve the 550-day sentence; and (3) Hampton and her

counsel could have contacted probation or the prosecutor’s office prior to the

Review Hearing to ascertain Hampton’s compliance. The State also argued

that Hampton received all required due process. After taking the matter under

advisement, the trial court issued an Order Concerning Defendant’s Motion to




Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 7 of 19
       Correct Error Alternatively Motion to Reconsider, denying Hampton’s

       motion.3 Hampton now appeals.


                                       Discussion and Decision
[9]    On appeal, Hampton argues that the trial court abused its discretion when it

       approved the Agreement because it improperly shifted the burden to her to

       show future compliance with her probationary terms and conditions, and it

       improperly removed judicial discretion from the trial court with regard to what

       sentence to impose for a violation of probation. The State argues, and we

       agree, that a direct challenge to the trial court’s approval of the Agreement,

       which occurred in November 2015, is untimely. See Appellee’s Br. at 11 (citing

       State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009)).


[10]   As stated, the parties presented the Agreement to the trial court on November

       23, 2015. That same day, the trial court, in its discretion, approved and

       accepted the Agreement and entered an order thereon. Appellant’s App. Vol. II at

       9 (CCS entry reflecting entry of order in Record of Judgments and Orders).

       Thus, at that time, the Agreement became an order of the court, which imposed

       a sanction (550 days of incarceration unless Hampton showed in six months

       that she complied with all terms and conditions of probation) for Hampton’s

       admission that she violated probation. As Hampton concedes, “The




       3
        We note that, in its Order Concerning Defendant’s Motion to Correct Error Alternatively Motion to
       Reconsider, the trial court granted Hampton’s request to stay enforcement of the November 23, 2015 and
       June 16, 2016 orders, pending resolution of this appeal.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                     Page 8 of 19
       Agreement [] is a final order as it determined that [Hampton] had violated the

       terms of her probation and set a sentence.” Appellant’s Br. at 8; see also Ind.

       Code § 35-38-2-3(l) (judgment revoking probation is final appealable order).

       Hampton, however, did not file a notice of appeal or a motion to correct error

       within thirty days. See Ind. Appellate Rule 9(A)(1). The failure to timely file a

       notice of appeal forfeits the right to appeal except as provided by Indiana Post-

       Conviction Rule 2.4 App. R. 9(A)(5). Thus, by her failure to comply with the

       applicable time limits, Hampton has forfeited her right to a direct appeal of the

       trial court’s order that approved the Agreement.5


[11]   That said, in this case, the trial court’s subsequent actions are reviewable. Here,

       after Hampton admitted at the Review Hearing in June 2016 that she failed to

       make all calls to the drug screen line as required and failed to make the required

       payments toward fees and restitution, the trial court determined that she had

       not complied with the terms and conditions of probation, and it issued, on June




       4
         In pertinent part, Post-Conviction Rule 2 provides: “An ‘eligible defendant’ for purposes of this Rule is a
       defendant who, but for the defendant’s failure to do so timely, would have the right to challenge on direct
       appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to
       correct error, or pursuing an appeal.” See also Dawson v. State, 943 N.E.2d 1281, 1281-82 (Ind. 2011)
       (dismissing defendant’s belated appeal and finding that Post-Conviction Rule 2 is available for direct appeals
       of convictions and sentences but not for belated appeals from an order revoking probation).
       5
         We recognize that our Supreme Court has determined, “Forfeiture and jurisdiction are not the same.” In re
       Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). Indiana Appellate Rule 9(A)(5) provides that, by failing to
       file timely a Notice of Appeal, “the right to appeal shall be forfeited.” However, our Supreme Court has
       explained that “although a party forfeits its right to appeal based on an untimely filing of the Notice of
       Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to
       entertain the appeal.” Id. at 971. The question is whether there are extraordinarily compelling reasons why
       this forfeited right should be restored. Id. We do not find extraordinarily compelling reasons to be present in
       this case.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                           Page 9 of 19
       13, 2016, an Order on Violation of Probation, ordering her to serve the

       previously-suspended 550-day sentence. Hampton filed her Motion to

       Reconsider the next day. On July 20, 2016, the trial court issued its Order

       Concerning Defendant’s Motion to Correct Error Alternatively Motion to

       Reconsider (“Order Denying Motion to Reconsider”), and Hampton filed her

       Notice of Appeal within thirty days. The propriety of the trial court’s Order

       Denying Motion to Reconsider is, therefore, properly before us. See Cooper v.

       State, 917 N.E.2d 667, 673 (Ind. 2009) (observing that, where defendant failed

       to timely file motion to correct error or notice of appeal of trial court’s

       revocation of his probation, but defendant later filed a motion to reconsider

       revocation order, only issue properly on appeal is whether trial court erred by

       denying defendant’s motion to reconsider), overruled on other grounds by Heaton v.

       State, 984 N.E.2d 614 (Ind. 2013).6 “‘We will review a trial court’s

       reconsideration of its prior rulings for abuse of discretion.’” Id. at 674 (quoting

       Estate of Hammar v. Hammar, 847 N.E.2d 960, 962 (Ind. 2006)).


                          I. Order Denying Motion to Reconsider
[12]   In its June 2016 Order on Violation of Probation, the trial court determined that

       the evidence at the Review Hearing established that Hampton failed to pay her

       monthly fees as required and failed to call the drug screen line each day by 3:00




       6
        Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) held that trial court was required to use the preponderance
       of the evidence standard, not probable cause standard, in determining whether a defendant violated
       probation, overruling Cooper v. State, 917 N.E.2d 667 (Ind. 2009) and other prior cases.



       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                       Page 10 of 19
       p.m. as required. After recognizing that the “Parties entered into a binding

       agreement on 11/23/15[,]” the trial court determined: “The Court, having no

       authority to change the [A]greement, and finding that the defendant has not

       fully complied, orders the defendant to serve 550 days at [DOC][.]” Appellant’s

       App. Vol. VII at 12. Hampton asked the trial court to reconsider its Order on

       Violation of Probation, seeking relief from the imposition of the 550-day

       sentence. At the hearing on the Motion to Reconsider, the trial court,

       addressing Hampton’s counsel, stated:

               If you’re arguing that I have the power to change the
               [A]greement, so that it no longer imposes this consequence on
               her, then tell me where I get that power, cause the [A]greement
               doesn’t say that. It says that the court lacks the authority to alter
               the [A]greement.


                ....


               Okay, well, she had failed to comply and I lack the authority to
               change the [A]greement, she’s going to have to serve 550 days at
               [DOC]. Ma’am. I’m sorry.


       Tr. at 24. While we appreciate the trial court’s reasoning, we find that its

       ultimate outcome is not in accord with Indiana law.


[13]   Probation revocation is a two-step process. First, the trial court makes a factual

       determination that a violation of a condition of probation actually occurred;

       second, if a violation is proven, the trial court must determine if the violation

       warrants a revocation of the probation. Johnson v. State, 62 N.E.3d 1224, 1229


       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 11 of 19
       (Ind. Ct. App. 2016); Hardy v. State, 975 N.E.2d 833, 835 (Ind. Ct. App. 2012).

       Upon revoking probation, the trial court may impose one of several sanctions

       provided by statute. Hardy, 975 N.E.2d at 835. Even a probationer who admits

       the allegations against him must still be given an opportunity to offer mitigating

       evidence suggesting that the violation does not warrant revocation. Ripps v.

       State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).


[14]   Here, the trial court approved the Agreement in November 2015. When it did

       so, the Agreement was no longer an agreement of the parties; it became a court

       order. As required by Indiana Trial Rule 77(B), the CCS reflects “ORDER

       entered” in the Record of Judgments and Orders. Appellant’s App. Vol. II at 9.

       Trial courts retain continuing authority over their own orders during the

       probationary period. See e.g., Ind. Code § 35-38-2-3(g) (trial court has authority

       to order executed sentence if defendant violates probation at any time during

       the probationary period) and Ind. Code § 35-38-2-1.8 (trial court may hold new

       probation hearing at any time during probationary period and may modify

       probationer’s conditions of probation); see also Cooper, 917 N.E.2d at 674

       (recognizing “the authority of a trial court to change its own rulings” and citing

       Pond v. Pond, 700 N.E.2d 1130, 1135 (Ind. 1998) (“A trial court may reconsider

       an order or ruling if the action remains in fieri, or pending resolution)).


[15]   The trial court had continuing authority to consider Hampton’s violations and

       her partial compliance, and it was required to determine the appropriate

       sanction to impose. This outcome is in accordance with our Supreme Court’s

       direction in Woods v. State, 892 N.E.2d 637 (Ind. 2008), where the Court had

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017     Page 12 of 19
       occasion to examine an agreement that was reached between a probationer and

       the State on the State’s petition to revoke probation. As here, the agreement

       contained a provision that purported to remove a trial court’s ability to exercise

       discretion to determine the appropriate sanction for a probation violation. Our

       Supreme Court found that that provision was “constitutionally suspect.” Id. at

       641.


[16]   In Woods, the defendant pleaded guilty and received a sentence of which a

       portion, namely fifteen years, was suspended. Woods was released from the

       DOC and placed on probation, and the State later filed a notice of probation

       violation. As in the present case, the parties informed the trial court that they

       had reached an agreement. Under the agreement, Woods would admit to the

       several violations that the State had alleged, and, in exchange, his probation

       would be extended for one year, and he would be tested weekly for drug use.

       Woods was placed on “strict compliance,” meaning any other violation of any

       terms or condition of probation would result “in full . . . 15 years.” Id. at 639.

       The trial court asked Woods if he understood that he would go to jail for 15

       years “if you won’t do what you’re supposed to do in the slightest,” and Woods

       stated that he understood. Id. The trial court entered an order, and Woods’s

       probation was extended until January 2007.


[17]   In October 2006, the State filed a second notice of probation violation, alleging

       that he failed to report to drug testing, failed to report to probation department,

       and failed to make an effort to pay court-ordered fees. At the start of the

       probation revocation hearing, the parties informed the trial court about the

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 13 of 19
       status, and the prosecutor responded that, if the trial court found that a

       violation had occurred, Woods faced 15 years, but that the State had offered

       Woods 12 years. At that point, Woods asked the trial court if he could explain

       “why [he] missed,” and the trial court stated, “No, because it doesn’t matter,

       because you’re on strict compliance you weren’t allowed to miss remember?”

       Id. Woods appealed, asserting that the trial court denied him due process by

       preventing him from explaining why he violated probation.


[18]   On appeal, this court affirmed the trial court. Woods v. State, 877 N.E.2d 188,

       189 (Ind. Ct. App. 2007), trans. granted. On transfer, our Supreme Court

       disapproved of the trial court’s lack of discretion to determine what sanction to

       impose. In its analysis, the Court recognized that “[i]n one sense, all probation

       requires ‘strict compliance’” because a probationer is expected to comply with

       terms and conditions of probation, and “[i]f the probationer fails to do so, a

       probation violation has occurred.” 892 N.E.2d at 641. However, the Court

       continued,


               the very notion that violation of a probationary term will result in
               revocation no matter the reason is constitutionally suspect.


               ....


               [T]elling 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.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017       Page 14 of 19
       Id. (internal citations omitted) (emphasis added). The Woods Court held that

       the trial court erred by denying Woods the opportunity to explain why his

       admitted violation should not result in revocation of his probation.7 Id.


[19]   More recently, a panel of this court in Sullivan v. State, 56 N.E.3d 1157 (Ind. Ct.

       App. 2016) addressed a similar situation where a plea agreement contained a

       provision that the prosecutor referred to as “zero tolerance probation.” Id. at

       1158. Among other things, Sullivan received concurrent sentences of twenty-

       four months, but the plea agreement directed that he would serve eighteen

       months on electronically-monitored home detention, so long as he maintained

       eligibility through community corrections, including abiding by all rules of

       home detention and remaining current on fees, and if he failed to establish

       eligibility, “the sentence will be served in the Decatur County Jail.” Id. The

       plea agreement continued:


                The defendant has been advised that the Court has discretion to
                determine the sanction if the defendant has been found to have
                violated the rules and guidelines of Community Corrections.
                The defendant hereby waives this right and agrees that if found to
                have violated these rules or otherwise become ineligible (except
                for non-payment of fees due to a change in economic




       7
         The Woods Court determined that, although the trial court erred by not allowing Woods the opportunity to
       explain why his violation was deserving of further consideration, Woods was not entitled to relief because at
       trial he did not make an offer of proof, nor did Woods “make any attempt” on direct appeal or on transfer
       “to explain why he violated the terms of his probation.” 892 N.E.2d at 642. Accordingly, the trial court’s
       judgment, revoking probation, was affirmed. Id.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                       Page 15 of 19
               circumstances) then the remaining portion of the defendant’s
               executed sentence shall be served at the Decatur County Jail.


       Id. The State filed a petition to revoke Sullivan’s community corrections

       placement, alleging that he failed to report to home detention as required. At

       the revocation hearing, Sullivan testified that he did not report to home

       detention as required, but explained that he was an inpatient at a mental health

       facility and that he contacted his then-legal counsel and thought that counsel

       had contacted community corrections. Ultimately, the trial court ordered that

       “[a]s required by the Plea Agreement[,]” Sullivan’s community corrections

       sentence was revoked, and he was ordered to serve his sentence at the DOC.

       Id. at 1160.


[20]   On appeal, Sullivan did not dispute that he did not report as required. Rather,

       he argued that the trial court abused its discretion in imposing such a harsh

       sentence under the circumstances including among other factors that he was in

       a mental health hospital on the day he was to report. Id. at 1161. Discussing

       the Woods decision, the Sullivan court determined that the provision of

       Sullivan’s plea agreement which provided that any non-fee violation would

       automatically result in the revocation of his community corrections placement

       was “constitutionally suspect.” 56 N.E.3d at 1162 (citing Woods, 892 N.E.2d at

       641). The Sullivan court noted the trial court’s “belief that it was required to

       revoke Sullivan’s placement by the terms of the plea agreement.” Id. The

       Sullivan court concluded that “[b]ased on the totality of the circumstances,

       including the nature of the violation and sanction,” the trial court abused its

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 16 of 19
       discretion in finding that Sullivan’s violation warranted revoking his

       community corrections placement and in ordering him to serve eighteen

       months in the DOC, and it remanded the matter for Sullivan to be placed in

       community corrections. Id.


[21]   Here, unlike in Woods, Hampton was given the opportunity to introduce

       evidence as to why the trial court should not, even in the face of her

       violation(s), revoke her probation. Hampton’s testified that she called the drug

       screen line as required most, but not all, days, although some days she missed

       the 3:00 p.m. deadline and instead called the front desk of the probation office,

       which the prosecutor suggested was a means that some probationers use to

       avoid having to be called in to take a drug screen. Hampton explained that she

       sometimes missed the deadline because she forgot and other times because she

       was at work until 4:00 p.m. With regard to payment of fees, she acknowledged

       that she was behind, but testified that she tried to make a catch-up payment and

       believed that she was close to being current. Hampton’s counsel argued that

       she had “substantially complied” with the Agreement. Tr. at 18. The State

       responded that substantial compliance was not sufficient, as “it’s a strict liability

       agreement.” Id.


[22]   On appeal, the State urges that the Agreement – in which (1) Hampton agreed

       to a violation, (2) the parties agreed to the sanction, and (3) the State agreed to

       stay her execution of the 550-day sentence on the condition that Hampton

       complete and abide by probation terms – is similar to a plea agreement, where

       the decision to accept or reject a plea agreement is a matter left to a trial court’s

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017   Page 17 of 19
       discretion, and once the trial court accepted the Agreement, a contract, its terms

       were binding upon the parties and the trial court. See Abernathy v. State, 852

       N.E.2d 1016, 1019 (Ind. Ct. App. 2006) (trial court is given discretion to accept

       or reject plea agreement and, if it accepts plea agreement, trial court is strictly

       bound thereby and is precluded from imposing any sentence other than that

       required by plea agreement). However, in Woods, our Supreme Court rejected

       the analogy between a probation agreement that requires strict compliance and

       a plea agreement: “We reject this comparison. A defendant who enters a plea

       agreement knowingly, intelligently, and voluntarily is hardly similarly situated

       to a defendant who is advised in essence either agree to strict compliance or go

       to jail now for violating probation.” Woods, 892 N.E.2d at 640 n.2.


[23]   Following our Supreme Court’s direction in Woods and our colleagues’

       application of that reasoning in Sullivan, we reverse the 550-day sanction and

       remand the matter to the trial court for it to determine the appropriate sanction

       to impose for Hampton’s violations of its order.8




       8
         We recognize that Hampton also asserts claims that (1) the Agreement illegally shifted the burden of proof
       to her, (2) she was denied due process at the review hearing because “did not receive proper notice of the
       claimed violations of the Agreement or disclosure of the State’s evidence against her[,] and (3) her trial
       counsel was ineffective by allowing her to enter into the Agreement due to “constitutionally suspect”
       language in it. Appellant’s Br. at 13, 16-17. Because we grant relief to Hampton on another basis, we do not
       reach these arguments.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                       Page 18 of 19
[24]   We affirm the trial court’s determination that Hampton violated the terms and

       conditions of her probation,9 and we remand the matter to the trial court for it

       to determine the appropriate sanction to impose for Hampton’s violations. 10


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


[26]   Robb, J., and Barnes, J., concur.




       9
           Hampton does not contend on appeal that she did not violate probation.
       10
          We note that our Supreme Court in Heaton indicated that violations such as (1) failure to keep the
       probation department informed of current address, (2) failure to obtain a substance abuse evaluation, and (3)
       failure to verify employment with the probation department, are “technical in nature[.]” 984 N.E.2d at 618.
       “[T]he selection of an appropriate sanction will depend upon the severity of the defendant’s probation
       violation[,]” and that “mere technicality” of some violations may warrant “a less severe sanction,” but that
       “such determination is better exercised by the trial court.” Id.

       Court of Appeals of Indiana | Opinion 88A04-1608-CR-1862 | March 13, 2017                       Page 19 of 19
