MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 16 2018, 9:25 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Fletchall,                                        July 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1712-CR-2976
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause Nos.
                                                         34D01-1308-FB-643
                                                         34D01-1501-F6-11



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018            Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jeremy Fletchall (Fletchall), appeals the trial court’s

      revocation of his probation and imposition of his previously suspended

      sentences.


[2]   We affirm.


                                                    ISSUE
[3]   Fletchall presents one issue on appeal, which we restate as: Whether Fletchall

      was properly advised of the terms of his probation before he was found to have

      violated his probation for the second time.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 23, 2013, the State charged Fletchall with three Counts of Class B

      felony dealing in a narcotic drug and two Counts of Class B felony dealing in a

      schedule II controlled substance in Cause No. 34D01-1308-FB-643 (FB-643).

      One Count of Class B felony dealing in a schedule II controlled substance was

      later dismissed. On January 7, 2015, while Fletchall was out on bond on FB-

      643, the State filed another Information, charging him with two Counts of

      Level 6 felony theft in Cause No. 34D01-1501-F6-11 (F6-11).


[5]   On April 22, 2015, Fletchall entered into a plea agreement in both Causes,

      pleading guilty to three Counts of Class B felony dealing in a narcotic drug in

      FB-643 and to both Counts of Level 6 felony theft in F6-11. That same day, the

      trial court sentenced him to concurrent terms of 15 years, with 10 years

      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 2 of 8
executed and 5 years suspended for each of his offenses in FB-643. In F6-11,

Fletchall was sentenced to concurrent terms of 913 days for each of his offenses.

The trial court ordered the sentences in both Causes to run consecutively to

each other, and verbally advised Fletchall:


        As a specific condition of his probation he shall follow any and
        all recommendations made by the [p]robation [d]epartment
        concerning education or treatment, further that as a specific
        condition of his probation he shall attend, complete and pay for
        the Drug and Alcohol Program. . . . . As a further specific
        condition of his probation he shall make restitution to the
        Kokomo Police Department in the sum of $480.


(Suppl. Transcript Vol. II, p. 12). As part of its sentencing order, the trial court

enumerated the following specific conditions of Fletchall’s probation:


        Successfully attend, complete and pay for the Howard County
        Drug and Alcohol Program and/or such other program as may
        be from time to time designated by the Howard County Drug
        and Alcohol Program. As further specific conditions of
        probation, [Fletchall] is ordered to follow any and all
        recommendations made by the [p]robation [d]epartment
        including, but not limited to, treatment and education. As
        further specific conditions of probation, [Fletchall] is ordered to
        pay restitution to the Kokomo Police Department . . . It is
        recommended that [Fletchall] be placed in a Therapeutic
        Community Program while incarcerated in the Indiana
        Department of [C]orrection. Upon successful completion of said
        program, the [c]ourt will consider modifying his sentence, so as
        to reduce the total time of incarceration.


(Appellant’s App. Vol. II. p. 11).


Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 3 of 8
[6]   On May 9, 2016, Fletchall’s sentence in both Causes was modified to allow him

      to serve the balance of his suspended sentence on electronic monitoring and day

      reporting and/or re-entry court supervision through Community Corrections.

      On May 27, 2016, Fletchall entered into a re-entry court program participation

      agreement. This agreement, signed by Fletchall, provided him with all the

      terms and conditions of the re-entry program and noted, in relevant part:


                8. If Participant is terminated from the [re-entry] [p]rogram
                while on the Community Transition Program they will be
                returned to the Department of Correction[]. If Participant is on
                probation they will be referred to the sentencing court for final
                disposition and if they are on parole they will be referred to the
                parole board for final disposition.


      (Appellant’s App. Vol. III, pp. 5-6).


[7]   On November 9, 2016, the State filed a petition to revoke Fletchall’s suspended

      sentence in both Causes when he was found to have violated the rules of the re-

      entry court program after testing positive for morphine and by leaving the

      program. As a result, Fletchall was terminated from the program. The trial

      court conducted a hearing on the State’s petition on March 21, 2017, and after

      Fletchall admitted to the allegations, the trial court revoked his probation. The

      trial court ordered Fletchall to serve 548 days of his previously-suspended

      sentence in FB-643 and in F6-11, the trial court ordered him to return to

      probation “with all the previous terms and conditions to remain in full force

      and effect,” after completing his sentence in FB-643. (Appellant’s App. Vol. II,

      p. 32).

      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 4 of 8
[8]   On July 11, 2016, Fletchall signed specific conditions of home detention, which

      specified, in pertinent part:


              6. I agree to limit my movement away from my house to involve
              only traveling to and from work. All other deviations must be
              pre-approved by the Community Corrections staff. If I am found
              to be away from my residence without prior permission from a
              Staff Member, I may be accused of escape. In case of a medical
              emergency, I agree to contact the Home Detention Staff as
              quickly as possible and show proof that it was in fact a medical
              emergency. Further, I understand that any attempt on my behalf
              to falsify information which will result in or has in fact resulted in
              a deviation from my schedule, will result in a violation being
              filed with the Prosecutor’s office.


              ****


              27. I understand all of the above conditions and agree to comply
              with each provision. I understand that if I am found to be in
              violation of any of the aforementioned conditions, I may be
              subject to sanctions which may include loss of errand time,
              forfeiture of good time credit or possibl[y] jail.


      (Appellant’s App. Vol. III, pp. 23, 26).


[9]   On July 18, 2017, Fletchall entered into a second re-entry court program

      participation agreement, which cautioned Fletchall that if he was terminated

      from the re-entry program, he would be returned to the Department of

      Correction or, if on probation, to the trial court for final disposition. In

      addition to the agreement, Fletchall was handed the re-entry handbook which

      contained all the conditions and sanctions of the programs. However, barely a


      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 5 of 8
       month later, on August 23, 2017, a second notice of termination from the re-

       entry program was filed in both Causes because Fletchall was not in a place

       where he had permission to be. After being terminated from the re-entry

       program, the State filed a petition to revoke Fletchall’s suspended sentence in

       both Causes on October 12, 2017. During the fact-finding hearing on the

       State’s petition on November 21, 2017, Fletchall acknowledged that he had to

       follow certain rules with the re-entry program and admitted that he was out

       more than three hours running errands in violation of the program

       requirements. The trial court concluded that Fletchall had violated the terms of

       his probation and revoked his probation. Fletchall was ordered to serve the

       entire balance of his previously-suspended sentence in both Causes.


[10]   Fletchall now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Fletchall contends that the trial court abused its discretion in finding him in

       violation of his probation because the trial court had failed to advise him of the

       terms of his probation. Probation is a matter of grace left to the trial court

       discretion, not a right to which a criminal defendant is entitled. Prewitt v. State,

       878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of

       probation and may revoke probation if conditions are violated. Id. Once a trial

       court has exercised its grace by ordering probation rather than incarceration,

       the judge should have considerable leeway in deciding how to proceed. Id. If

       this discretion were not afforded to the trial court and sentences were

       scrutinized too severely on appeal, trial courts might be less inclined to order
       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 6 of 8
       probation to future defendants. Id. Accordingly, a trial court’s sentencing

       decisions for probation violations are reviewable using the abuse of discretion

       standard. Id. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances. Id.


[12]   Whenever the trial court places a person on probation, the court must specify

       on the record the conditions of the probation and give the person a written

       statement specifying his conditions of probation. Ind. Code §§ 35-38-2-1; -2.3.

       “Thus, the law generally requires that if a person is placed on probation, the

       trial court must provide the defendant a written statement containing the terms

       and conditions of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d

       1231, 1234 (Ind. Ct. App. 2013). However, we have previously held that the

       trial court’s failure to provide written probation terms may be harmless error if

       the defendant has been orally advised of the conditions and acknowledges that

       he understands them. Id.


[13]   Nevertheless, during the trial court’s hearing on the State’s petition to revoke

       Fletchall’s probation, Fletchall never presented the argument that he had not

       been advised of the conditions of probation. It is well settled that a party may

       not present an argument or issue to an appellate court unless the party raised

       the same argument or issue before the trial court. See Craig v. State, 883 N.E.2d

       218, 220 (Ind. Ct. App. 2008). Therefore, Fletchall waived his claim.


[14]   Furthermore, Indiana Appellate Rule 46(A)(8)(a) mandates that the argument

       section of an appellate brief should contain the contentions of the appellant


       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 7 of 8
       supported by cogent reasoning and with reference to the appropriate authorities

       and record. Not counting the standard of review, Fletchall’s entire argument is

       two sentences long, with another two sentences repeating what has already

       been stated. The argument is coached in general terms—"the failure to have

       written, signed rules of probation is fatal”—and fails to assert which proceeding

       Fletchall is referring to, which probation terms he was not advised about, or

       which were unclear. (Appellant’s Br. p. 7). Accordingly, Fletchall waived his

       claim.


[15]   Notwithstanding these waivers, a review of the record discloses that Fletchall

       was apprised of his terms of probation, signed specific conditions of home

       detention, signed two re-entry court program participation agreements, and

       acknowledged during the hearing that he had violated the conditions of his

       probation. Therefore, as Fletchall was repeatedly advised of his probation

       conditions, we affirm the trial court’s revocation of his probation.


                                             CONCLUSION
[16]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in revoking Fletchall’s probation and ordering him to serve the balance of his

       previously suspended sentence.


       Affirmed.


       May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2976 | July 16, 2018   Page 8 of 8
