MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Sep 26 2016, 8:51 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                             and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                            Gregory F. Zoeller
Deputy Public Defender                                        Attorney General of Indiana
Kokomo, Indiana
                                                              Karl Scharnberg
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana




                                              IN THE
     COURT OF APPEALS OF INDIANA

Charles R. Ellis,
                        1
                                                             September 26, 2016
                                                             Court of Appeals Case No.
Appellant-Defendant,
                                                             34A05-1511-CR-1844
         v.                                                  Appeal from the Howard Superior
                                                             Court.
                                                             The Honorable William C. Menges,
State of Indiana,                                            Judge.
                                                             Cause No. 34D01-0801-FB-57
Appellee-Plaintiff.




Darden, Senior Judge




1
 Ellis contends that the sentencing order from which he appeals incorrectly refers to him as Charles R. Ellis
when his name is Charlie R. Ellis. We refer to him as Charles R. Ellis, which is the name shown in the
caption of this appeal.

Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016          Page 1 of 9
                                          Statement of the Case
[1]   The State filed a petition to revoke Charles R. Ellis’s suspended sentence. After

      the trial court accepted Ellis’s admission to the probation violation, the court

      imposed sentence on the violation. Ellis appeals, contending that the trial

      court’s sentence is illegal or erroneous. We affirm.


                                                           Issue
[2]   The sole issue presented for appeal is whether the sentence imposed by the trial

      court is illegal or erroneous.


                                   Facts and Procedural History
[3]   On January 24, 2008, the State charged Ellis with two counts of dealing in
                   2                                                                               3
      cocaine, each as a Class B felony. Apparently, Ellis plead guilty in open court



      2
          Ind. Code § 35-48-4-1 (2006).
      3
        The record provided to us shows a document filed with the court, purporting to be submitted by the State
      and is signed by Ellis and his trial counsel. The Recommendation of Plea Agreement indicates that “The
      Prosecutor anticipates that the Defendant, Charles R. Ellis, intends to enter a plea of guilty to Count I,
      Possession of Cocaine, a Class D Felony, as a lesser included offense and Count II, Possession of Cocaine, a
      Class D Felony, as a lesser included offense.” Appellant’s App. p. 61. The document goes on to state that
      the “recommendation is filed with the Court prior to entry of the above plea.” Id. The recommendation,
      referring only to Count I, states that the “Defendant will be sentenced to the Indiana Department of
      Corrections [sic] for three (3) years, with one (1) year to be served on In-Home Detention and two (2) years
      suspended to supervised probation.” Id. No further reference is made to Count II, nor is there a reference to
      consecutive sentencing. The document concludes by stating “the State of Indiana and Defendant respectfully
      move the Court accept the terms of this negotiated Recommendation of Plea Agreement.” Id. at 62. An
      additional document entitled “Agreed Entry On Pre-Trial Conference” was submitted to the trial court. Id. at
      63. The agreed entry provides as follows:
                 The parties file a Recommendation of Plea Agreement. The Defendant confirms that he
                 or she is aware that the Court is not a party to the agreement, and if the Court accepts the
                 terms of the Agreement, it will be bound by it. If the Court does not accept the
                 Agreement, the Defendant will no longer be bound by it, and can have a trial. This
                 matter is referred to the Howard County Adult Probation Department for a Pre-Sentence

      Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016                 Page 2 of 9
      to two counts of the lesser included offenses of possession of cocaine, each
                                           4
      count as a Class D felony; with the State to make a recommendation that Ellis

      receive a three year sentence on Count I with one year to be served on home

      detention followed by two years of supervised probation. On December 8,

      2008, the trial court accepted Ellis’s plea and sentenced him to consecutive

      sentences of three years imprisonment on each count, with one year executed

      on home detention and the remaining two years suspended to supervised

      probation for an aggregate sentence of six years. Both parties have interpreted

      the order to mean that Ellis would spend two years on home detention followed

      by four years of probation. Ellis received credit for one hundred eighty-three

      days of jail time credit and one hundred eighty-three days of good time credit,

      or an aggregate of three hundred sixty-six days while awaiting trial on these

      charges. Ellis was ordered to report to Howard County Home Detention

      within twenty-four hours of sentencing.


[4]   Subsequently, on June 26, 2009, the State filed a notice of non-compliance with

      conditions of home detention through Howard County Community

      Corrections. In particular, the State alleged that Ellis was terminated from a

      Fulton County Home Detention program on June 12, 2009 for an unrelated




                 Investigation and Report, and this cause is set for further hearing, and potential
                 sentencing on the 3rd day of Dec., 2008, at 1:30 p.m.. The Defendant is ORDERED to
                 report to Probation FORTHWITH.
      Id. at 63. The Agreed entry is signed by Ellis, his counsel, and the State.


      4
          Ind. Code § 35-48-4-6 (2006).


      Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016       Page 3 of 9
      charge for failing to pay mandatory fees and for changing his residence to

      Howard County. Appellant’s App. p. 73. As of June 24, 2009, however, Ellis

      had not reported to or contacted Howard County Community Corrections to

      begin placement for his two years of home detention in Howard County. Id. A

      warrant was issued for his arrest.


[5]   Ellis was arrested on April 12, 2010, for not reporting to Howard County

      Community Corrections. At an initial hearing on April 15, 2010, Ellis

      informed the court that he wanted to admit the allegation of non-compliance.

      The trial court set the matter for a hearing on April 29, 2010, released Ellis on

      his own recognizance as to the non-compliance allegation only, and ordered

      Ellis to report to Howard County Community Corrections to set up his in-home

      detention on the underlying sentence. Id. at 6. Ellis reported on April 19, 2010.


[6]   At the hearing held on April 29, 2010, the trial court accepted Ellis’s admission

      to the non-compliance allegations and extended Ellis’s original probation for a

      period of six months for that violation, keeping all other terms and conditions

      of probation in full force and effect. The court also gave Ellis three days of jail

      time credit and three days of good time credit from April 12, 2010, the date of

      his arrest until April 15, 2010, the date of his release on his own recognizance.


[7]   On July 1, 2010, the State filed a notice of violation against Ellis alleging that

      when he reported for his home detention interview on April 19, 2010, Ellis

      tested positive for amphetamine, hydrocodone, hydromorphone, oxycodone

      and cannabinoids. The notice further alleged that on May 13, 2010, Ellis again


      Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 4 of 9
       tested positive for methamphetamine, amphetamine, oxycodone, and

       morphine. Ellis also owed $608.00 under his home detention agreement. A

       warrant was issued for Ellis’s arrest.


[8]    When Ellis was arrested on that warrant on August 12, 2010, he had served 106

       days on in-home detention. Again, on October 28, 2010, he was released on his

       own recognizance by agreement of the parties. As a result, Ellis had served

       seventy-seven days incarcerated awaiting disposition on the in-home detention

       violation.


[9]    On January 6, 2011, Ellis admitted to the allegation of non-compliance and the

       trial court gave him credit for all time served incarcerated, jail time credit and

       good time, and concluded that he was discharged from his sentence to in-home

       detention. However, the trial court ordered that his period of supervised

       probation be extended for an additional period of six months. Thus, the period

       of supervised probation as extended amounted to a period of five years.

       Therefore, as of January 6, 2011, the earliest Ellis could possibly be released

       from supervised probation, without additional sanctions for violations or court

       order was early January 2016.


[10]   Ellis served approximately nine months on supervised probation. However, on

       September 16, 2011, he was convicted and sentenced to prison on an unrelated

       charge. Therefore, from September 16, 2011, until March 22, 2013, Ellis was

       incarcerated for the unrelated conviction for possession of a controlled

       substance. He was returned to supervised probation on the instant charges on


       Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 5 of 9
       March 23, 2013. Upon his return, Ellis had approximately four years and three

       months remaining on supervised probation in Howard County commencing on

       or about March 23, 2013.


[11]   On June 16, 2015, the State filed a petition to revoke Ellis’s suspended

       sentence, citing both his failure to report to probation as requested since March

       16, 2015, and for being arrested on a new charge of possession of a controlled

       substance and other matters. Ellis was arrested on June 19, 2015. Accordingly,

       Ellis had served almost an additional two years and three months of his

       probationary period prior to his June 19, 2015 arrest; although some apparently

       was not under direct supervision.


[12]   Ellis remained incarcerated and at a set September 24, 2015 hearing date, he

       admitted the allegations of the petition to revoke. At the trial court’s request,

       the probation department filed its sentencing recommendation on October 20,

       2015. The probation department recommended that Ellis serve the remainder

       of his previously suspended sentence in the Department of Correction, and

       calculated the remaining sentence to be 816 days. On October 21, 2015, the

       trial court imposed a sentence of 816 days as recommended. The trial court

       specifically denied Ellis any jail credit time from his June 19, 2015 arrest and

       incarceration, apparently because he was being held on another unrelated

       charge. Ellis now appeals.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 6 of 9
                                    Discussion and Decision
[13]   Ellis argues that the sentence imposed after his probation was revoked is either

       illegal or erroneous. We disagree.


[14]   Upon review of a trial court’s decision to revoke probation and the trial court’s

       sentencing decision after probation has been revoked, we look for an abuse of

       discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans.

       denied. An abuse of discretion occurs when the decision is clearly against the

       logic and effect of the facts and circumstances before the court, or when the trial

       court misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).


[15]   Our Supreme Court has held that “a trial court has the statutory authority to

       order executed time following revocation of probation that is less than the

       length of the sentence originally suspended, so long as, when combined with

       the executed time previously ordered, the total sentence is not less than the

       statutory minimum.” Stephens v. State, 818 N.E.2d 936, 942 (Ind. 2004). Here,

       Ellis was convicted of two Class D felony offenses, with the sentences to be

       served consecutively. At the time Ellis was sentenced, the sentencing range for

       a Class D felony was a fixed term of between six months and three years, with

       the advisory sentence being one and one-half years. Ind. Code § 35-50-2-7

       (2005). Therefore, the trial court’s imposition of 816 days, or approximately

       two years and almost three months, which is far less than the length of the

       sentence originally suspended, is more than the statutory minimum.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 7 of 9
[16]   Further, Indiana Code section 35-38-2-3(h) (2015) provides options for the

       sanction a trial court may impose upon finding a violation of a condition of

       probation prior to the termination of that period. One of the options,

       subsection 3, provides that the trial court may order execution of all or part of

       the sentence that was suspended at the time of initial sentencing. Four years

       (1,460 days) of Ellis’s sentence were suspended to supervised probation.

       Imposition of 816, or approximately two years and almost three months, is less

       than the sentence initially suspended and is authorized by statute.


[17]   We note that Ellis was initially sentenced to an aggregate sentence of six years

       or 2,190 days. On October 21, 2015, his four-year supervised probation was

       revoked and Ellis was sentenced for the probation violation to 816 days, which

       is less than the 1,460 days he could have been ordered to serve. Although Ellis

       was arrested on June 19, 2015 and this case was disposed of on October 21,

       2015, the trial court specifically denied Ellis jail credit time, apparently because

       he was being held on another unrelated charge. Therefore, the trial court was

       acting within its discretion in sentencing Ellis. Consequently, Ellis will not

       have served executed time related to these charges in excess of his original

       sentence for these charges. We conclude that his sentence is neither illegal nor

       erroneous.


                                                Conclusion
[18]   In light of the foregoing, we affirm the trial court’s judgment.


[19]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 8 of 9
Mathias, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 34A05-1511-CR-1844 | September 26, 2016   Page 9 of 9
