MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                       Oct 24 2019, 8:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon Ray Kern,                                        October 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1051
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C02-1705-F6-921
                                                         10C02-1705-F6-972



Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019                     Page 1 of 7
                                                 Case Summary
[1]   Brandon Ray Kern appeals the trial court’s determination of his sentencing

      placement following the revocation of his probation and the trial court’s

      allocation of jail time credit. We affirm in part, reverse in part, and remand.


                                                        Issues
[2]   Kern raises two issues on appeal, which we restate as follows:


                 I.      Whether the trial court abused its discretion in ordering
                         Kern to serve the remainder of his previously suspended
                         sentence in the Department of Correction (“DOC”),
                         instead of community corrections.


                 II.     Whether the trial court erroneously denied Kern jail time
                         credit to which he was entitled.


                                                         Facts
[3]   This case stems from Kern’s successive violations of his probation. While Kern

      was on probation and home detention in a separate cause, 1 the State charged

      him in Cause 10C02-1705-F6-921 (“F6-921”) with unlawful possession of a

      syringe, a Level 6 felony, and resisting law enforcement, a Class A

      misdemeanor, on May 10, 2017. As a result, the State also charged Kern in




      1
          Kern was on probation in Cause 10C03-1705-F6-904 for residential entry and battery.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019          Page 2 of 7
      10C02-1705-F6-972 (“F6-972”) with escape, a Level 6 felony, for his alleged

      violation of a home detention order.


[4]   On September 11, 2018, Kern pleaded guilty to unlawful possession of a

      syringe, a Level 6 felony, and resisting law enforcement, a Class A

      misdemeanor. In a consolidated sentencing hearing, the trial court sentenced

      Kern as follows: two-and-one-half years for unlawful possession of a syringe, a

      Level 6 felony; two-and-one-half years for escape, a Level 6 felony; and one

      year for resisting law enforcement, a Class A misdemeanor. The trial court

      ordered the one-year sentence to be served consecutively to the two-and-one-

      half-year sentences, which the Court ordered to be served concurrently. The

      trial court then suspended Kern’s aggregate three-and-one-half-year sentence to

      probation.


[5]   On November 13, 2018, the State filed an initial petition to revoke Kern’s

      probation in F6-921 and F6-972, which was subsequently amended two times. 2

      On April 9, 2019, Kern admitted to violating the terms of his probation and




      2
       Kern’s violations of probation occurred on October 22, November 2, and November 14, 2018. On October
      22, 2018, the State charged Kern in Cause 10C03-1810-F6-1886 with theft, a Level 6 felony, and resisting law
      enforcement, a Class A misdemeanor. On November 2, 2018, the State charged Kern in Cause 10C03-1811-
      CM-1943 with possession of marijuana, a Class A misdemeanor, and possession of paraphernalia, a Class C
      misdemeanor. Subsequently, while Kern was incarcerated in the Clark County Jail, he was found in
      possession of contraband and, on November 14, 2018, the State charged Kern in Cause 10C03-1811-CM-
      1991 with possession of marijuana, a Class B misdemeanor, and possession of paraphernalia, a Class C
      misdemeanor.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019                 Page 3 of 7
      asked the trial court to consider a sentencing placement in the MAST program. 3

      The probation revocation sanction was left to the trial court’s discretion.


[6]   At Kern’s probation revocation hearing on April 9, 2019, the State presented

      evidence that, following an evaluation, Kern was deemed to be a poor

      candidate for MAST because he was “identified as high-risk” and had

      “previous failed attempts with transitional programs[.]” 4 Tr. Vol. II p. 25; App.

      Vol. II p. 90. Probation Officer Stark 5 testified that the probation department

      initially recommended revocation of Kern’s previously suspended sentence,

      subject to the results of his MAST evaluation; “[b]ut with [Kern] being denied

      to the MAST program, [the probation department] recommend[s]” ordering

      Kern to serve the remainder of his previously suspended sentence in the DOC.

      Id. at 24. The trial court then stated:


                 Mr. Kern, I’m not going to [order you into the MAST program]
                 today, because [ ] the people who [ ] we’ve designated as more
                 qualified to do these evaluations tell me that they don’t think you
                 would have a chance of success in the program. * * * * * [T]his is
                 a 2nd Amended Petition [to revoke probation], which means [the]
                 third violation alleged. Can’t do anything else, Mr. Kern, except



      3
       The Mental Health Addiction Supervision and Treatment program or MAST is a community corrections
      program.
      4
        On March 26, 2019, Dawn Millspaugh, coordinator of the MAST program, advised the trial court in
      writing that “Mr. Kern does not demonstrate whether he would qualify as a suitable candidate for admittance
      into [the] MAST program. Mr. Kern does not demonstrate by his answers to the assessment questions nor by
      discussion of an exit plan from the MAST Program Phase 1 that he is motivated to comply with program
      requirements and maintain sobriety. Also, Mr. Kern [sic] multiple failed attempts at Community Corrections
      make[ ] Mr. Kern a poor candidate for the MAST Program. Mr. Kern will not be recommended for
      admittance . . . .” Appellant’s App. Vol. II p. 92.
      5
          Probation Officer Stark’s first name is not included in the record.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019                Page 4 of 7
               follow the Probation Department’s recommendation to revoke
               the entirety of the suspended sentence.


      Id. at 26, 27. The trial court noted that Kern was entitled to “158 actual days

      [of jail time] credit”; however, although the trial court’s abstract of judgment

      reflects jail time credit of 158 days in F6-921, the abstract of judgment in F6-972

      is silent as to jail time credit. Id. at 27. Kern now appeals.


                                                     Analysis
                           I.       Denial of Community Corrections Placement

[7]   Kern argues that the trial court abused its discretion when it ordered him into

      the DOC instead of the MAST community corrections program. 6 Kern’s Br. p.

      16. The State counters, and we agree, that this claim is unavailing.


[8]   A trial court’s sentencing decisions for probation violations are reviewable using

      the abuse of discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007). An abuse of discretion occurs where the decision is clearly against the

      logic and effect of the facts and circumstances. Id.


[9]   Here, Kern argued below that he was a good candidate for placement in a

      community corrections drug treatment program because of: (1) the severity of

      his addiction; (2) his family history of drug dependency, including two siblings’

      overdose deaths; and (3) Kern’s new-found desire to achieve sobriety. The trial



      6
        Kern does not argue that his probation should not have been revoked or that the trial court exceeded its
      statutory authority when it ordered him to serve the remainder of his previously suspended sentence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019                   Page 5 of 7
       court heard probation officer Stark’s testimony that Kern was not a good

       candidate for placement in MAST and was a “high risk” applicant with a

       record of previous failed attempts at transitional programs. See Tr. Vol. II p. 25;

       App. Vol. II p. 90.


[10]   It is well-settled that the trial court had “considerable leeway” in deciding the

       consequences of Kern’s probation violations. See Prewitt, 878 N.E.2d at 188.

       2007). Given Kern’s repeated probation violations, his record of failed attempts

       at transitional programs, and the results of his MAST evaluation, we cannot say

       that Kern’s placement in the DOC was an abuse of discretion. See King, 894

       N.E.2d at 268.


                                             II.      Jail Time Credit

[11]   Kern also argues that the trial court erred in denying him jail time credit. Jail

       time credit operates differently depending on whether the sentences are

       consecutive or concurrent. Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995). In

       concurrent sentencing cases, Indiana Code Section 35-50-6-3 entitles the

       individual to receive credit time applied against each separate term; however, in

       consecutive sentencing cases, pretrial credit is awarded against the total or

       aggregate of the sentence terms. Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct.

       App. 2000), trans. denied.


[12]   Here, in sentencing Kern, the trial court imposed concurrent sentences in

       Causes F6-921 and F6-972; Kern was, therefore, entitled to 158 days of jail time

       credit in both F6-921 and F6-972 for actual days served from November 2,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019   Page 6 of 7
       2018, to April 9, 2019. The trial court, however, only granted jail time credit in

       F6-921; this was clear error. See I.C. § 35-50-6-3. The State concedes that Kern

       is entitled to jail time credit in F6-972. See Appellee’s Br. p. 10 (“The trial court

       made both sentence sanctions concurrent to each other, but, in error on the

       abstract of judgment, only applied credit time to F6-921 and not to F6-972.”).

       Thus, we remand with instructions to correct the abstract of judgment in F6-972

       in accordance with this opinion.


                                                 Conclusion
[13]   Kern’s sentencing placement in the DOC, after multiple probation violations

       and after being deemed to be a poor candidate for MAST, is not an abuse of

       discretion. The trial court erroneously denied jail time credit to Kern in F6-972.

       We remand for correction of the F6-972 abstract of judgment to remedy the

       trial court’s error. We affirm in part, reverse in part, and remand.


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


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1051 | October 24, 2019   Page 7 of 7
