MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               May 30 2018, 8:23 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
Andrew B. Arnett                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Ian McLean
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

Dustin Eugene Harpring,                                 May 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1711-CR-2693
        v.                                              Appeal from the Shelby Circuit Court
                                                        The Honorable Charles D. O’Connor,
State of Indiana,                                       Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        73C01-1401-FB-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018           Page 1 of 7
                                             Case Summary
[1]   Dustin Eugene Harpring appeals the trial court’s revocation of his probation.

      He contends that the trial court abused its discretion. Finding no abuse of

      discretion, we affirm the revocation. However, we remand to the trial court for

      clarification of its sentencing decision.


                                 Facts and Procedural History
[2]   On January 9, 2014, the State charged Harpring with class B felony burglary

      and class D felony theft. The State subsequently also alleged that Harpring was

      a habitual offender. Shortly before the scheduled trial date, the parties entered

      into a plea agreement providing for Harpring to plead guilty to both charges in

      exchange for an executed sentence cap of ten years, and dismissal of the

      habitual offender charge. The agreement also provided for Harpring to serve

      his sentence concurrent with the sentence imposed in cause number 73C01-

      1311-FB-78. The trial court accepted the agreement and sentenced Harpring to

      twelve years, with ten years executed and two years suspended to probation.

      The court ordered 180 days of the probationary period to be served on home

      detention. The court stated that it would consider sentence modification if

      Harpring successfully completed a Therapeutic Community program as part of

      Purposeful Incarceration.


[3]   In March 2016, Harpring filed a motion for sentence modification stating that

      he had successfully completed a Therapeutic Community program. Following

      a modification hearing, the trial court entered a revised sentence. Although the


      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 2 of 7
      aggregate sentence remained at twelve years, the court gave Harpring credit for

      1044 days of time already served, and ordered 180 days of his previously

      executed sentence to be served on home detention. The trial court suspended

      the balance of his sentence, or 3156 days, to probation. As the deputy

      prosecutor later put it, Harpring was given “the colossal break of getting

      modified out” of jail. Tr. Vol. 2 at 21.


[4]   On April 28, 2017, the State filed a petition to revoke Harpring’s probation

      alleging that Harpring had “consumed opiates while on probation as evidenced

      by a positive drug screen.” Appellant’s App. Vol. 2 at 69. During an

      evidentiary hearing held on July 6, 2017, Harpring admitted to the probation

      violation. He stated that he attempted suicide by trying to overdose on heroin

      and that was the reason for his positive drug screen. He requested leniency,

      emphasizing that his overdose attempt was an isolated incident and that all his

      prior drug screens had been negative. The trial court took the punishment

      under advisement, continued the matter, and ordered Harpring to submit to

      another drug screen immediately following the hearing to “see where we are

      with all of this.” Tr. Vol. 2 at 22. Harpring tested positive for

      methamphetamine. On July 18, 2017, the trial court held a dispositional

      hearing, revoked Harpring’s probation, and ordered him to serve the balance of




      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 3 of 7
      his previously suspended sentence in the Department of Correction. This

      appeal ensued.1


                                      Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                        revoking Harpring’s probation.
[5]   Harpring contends that the trial court abused its discretion in revoking his

      probation and ordering him to serve the remainder of his previously suspended

      sentence in the Department of Correction. “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). Probation revocation is a two-

      step process. First, the trial court must determine that a violation of a condition

      of probation actually occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

      Second, the court must determine if the violation warrants revocation of

      probation. Id. Where, as here, a probationer admits to the violation, the court

      can proceed to the second step of the inquiry and determine whether the

      violation warrants revocation. Id. But 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. Id.




      1
        Harpring has sent numerous pro se documents to the Clerk of the Indiana Appellate Courts. He has been
      informed that those documents have not been filed because he is represented by counsel. See Underwood v.
      State, 722 N.E.2d 828, 832 (Ind. 2000) (once counsel is appointed, defendant speaks to court through
      counsel).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018             Page 4 of 7
[6]   Harpring argues that he was “successfully” completing the terms of his home

      detention and that he had “passed all drug screens” until he submitted a

      positive screen for heroin on April 10, 2017. Appellant’s Br. at 10. He argues

      that the positive screen was the result of a suicide attempt, and that the trial

      court should have considered his mental health issues and prior negative

      screens as mitigating evidence and declined to revoke his probation. However,

      the record reveals that the trial court did consider Harpring’s mitigating

      evidence and even gave him the opportunity to redeem himself by taking the

      admitted violation under advisement and ordering Harpring to complete

      another drug screen. Harpring tested positive for methamphetamine in that

      second drug screen. Under the circumstances, we cannot say that the trial court

      abused its discretion in determining that revocation of Harpring’s probation was

      warranted.


           Section 2 – We remand to the trial court for clarification
             regarding the punishment imposed upon revocation.
[7]   We next address the punishment imposed by the trial court upon revocation.

      “We review a trial court’s sentencing decision in a probation revocation

      proceeding for an abuse of discretion.” Puckett v. State, 956 N.E.2d 1182, 1186

      (Ind. Ct. App. 2011) (citing Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct.

      App. 2006)). An abuse of discretion occurs if the trial court’s decision is against

      the logic and effect of the facts and circumstances before the court. Id. A trial

      court has “considerable leeway in deciding how to proceed” when a defendant

      violates probation. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 5 of 7
      2013) (citing Prewitt, 878 N.E.2d at 188), trans. denied. It may (1) continue the

      defendant on probation; (2) extend the probationary period for not more than

      one year beyond the original period; or (3) order all or part of a previously

      suspended sentence to be executed. Ind. Code § 35-38-2-3(h).


[8]   During sentencing, the trial court unambiguously stated that it was revoking

      Harpring’s probation and ordered him to serve “10 years” of his aggregate

      twelve-year sentence. Tr. Vol. 2 at 25. However, the trial court’s written

      sentencing order and abstract of judgment provides that “six (6) years and fifty-

      two (52) days” of Harpring’s previously suspended sentence are revoked and

      ordered executed. Appellant’s App. Vol. 2 at 45-47. While we presume that

      the written sentencing order and abstract of judgment provide the correct

      sentence, both parties appear confused and refer to the court’s oral statement as

      the punishment imposed. When there is conflict between the trial court’s

      statements, we may remand for clarification. Ramos v. State, 869 N.E.2d 1262,

      1264 (Ind. Ct. App. 2007). Accordingly, we affirm the trial court’s revocation

      of Harpring’s probation, but due to the ambiguity regarding the punishment

      imposed, we remand to the trial court for clarification. 2




      2
        The State concedes that the trial court’s orders may be “unclear” and that remand for clarification is a
      proper remedy. State’s Br. at 12 n.2. Harpring argues that the trial court is without authority to order him to
      serve any executed term in excess of two years, since that was the length of his original suspended sentence.
      Harpring cites no legal authority for this proposition, and he acknowledges that the trial court subsequently
      modified his sentence, increasing the suspended portion of his sentence to a little more than eight and one-
      half years (3156 days). In its clarified order, the trial court has the discretion to order all or part of the
      previously suspended modified sentence to be executed. Ind. Code § 35-38-2-3(h). In other words, a six-year
      and fifty-two-day executed sentence as provided for in the court’s written orders would not constitute an
      abuse of discretion.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018                 Page 6 of 7
[9]   Affirmed and remanded.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1711-CR-2693 | May 30, 2018   Page 7 of 7
