Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Mar 26 2014, 9:14 am
any 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:

JILL M. ACKLIN                                             GREGORY F. ZOELLER
Acklin Law Office, LLC                                     Attorney General of Indiana
Westfield, Indiana
                                                           JOSEPH Y. HO
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MATTHEW RAMSEY,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 48A02-1308-CR-704
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Angela Warner Sims, Judge
                      The Honorable Jason A. Childers, Judge Pro Tempore
                               Cause No. 48C01-0809-FB-537
                              Cause No. 48C01-1209-FD-1803


                                          March 26, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

           Matthew Ramsey (“Ramsey”) was convicted in Cause FB-537 (“FB-537”) of Child

Molesting, as a Class B felony,1 and in Cause FD-1803 (“FD-1803”) of Failure to Register as

a Sex Offender, as a Class D felony.2 Ramsey was subsequently found to have violated the

terms of probation ordered in both cases, as well as the requirements of work release in FD-

1803. His work release placement and probation were thereafter revoked.

           Ramsey now appeals. We affirm.

                                             Issue

           Ramsey raises two issues for our review. We consolidate these into a single issue:

whether the trial court fundamentally erred when it revoked Ramsey’s probation after

limiting the time available for Ramsey to provide testimony upon redirect examination,

where Ramsey did not object to the limitation of time, seek a continuance, or attempt to offer

additional testimony.

                                 Facts and Procedural History

           On January 16, 2009, in FB-537, Ramsey and the State entered into a plea agreement

under which Ramsey agreed to enter a plea of guilty to a single count of Child Molesting, as

a Class B felony. Pursuant to the agreement, the State recommended that Ramsey receive ten

years imprisonment, with four years suspended to probation. The trial court agreed with the

State, and on February 27, 2009, the court entered a judgment of conviction against Ramsey



1
    Ind. Code § 35-42-4-3(a).

2
    I.C. § 11-8-8-17(a).

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and sentenced him according to the State’s request. The terms of Ramsey’s probation

required that he participate in a sex offender treatment program approved by the probation

department, with all treatment recommendations, and provide verification of his compliance.

       Ramsey was released from the Department of Correction to probation on September 8,

2011. On August 20, 2012, the State filed a notice of probation violation, alleging that

Ramsey had failed to comply with the treatment program and financial requirements of his

probation. A probation revocation hearing was conducted on October 1, 2012, at the end of

which the trial court found Ramsey to have violated the terms of his probation. The court

ordered Ramsey to serve as executed time in the Madison County Jail ninety days of the

suspended sentence. On October 3, 2012, Ramsey was readmitted into the sex offender

treatment program.

       On September 26, 2012, during the pendency of the first probation revocation

proceeding, Ramsey was charged in FD-1803 with Failure to Register as a Sex Offender, as a

Class D felony. Ramsey pled guilty to this charge on January 7, 2013, and on February 25,

2013, he was sentenced to three years imprisonment, with two years to be served at the

Madison County Work Release Center and one year suspended to probation.

       Ramsey entered into work release on February 26, 2013. On June 18, 2013, the State

filed a petition seeking to terminate Ramsey’s work release placement for violation of several

provisions of the terms of his work release, including failure to turn in work verification,

refusal to cooperate, possession of contraband, failure to report whereabouts, and excessive

absence from the work release facility. On June 24, 2013, the petition was amended to allege


                                              3
that Ramsey had been arrested on an outstanding warrant and that he was in arrears on

payments for work release fees. On June 28, 2013, the State sought revocation of the

probation in FD-1803 and alleged that Ramsey had violated the terms of his probation by

failing to complete both a sex offender treatment program and the work release portion of his

sentence.

       On July 10, 2013, the State filed a notice of violation of suspended sentence in FB-

537, alleging that Ramsey had failed to complete sex offender treatment.

       A hearing on revocation of Ramsey’s work release placement and probation was

conducted on July 15, 2013. During the hearing, the parties called witnesses and Ramsey

testified on his own behalf. During the State’s cross-examination of Ramsey, the trial court

stated that examination of Ramsey could only continue for five more minutes. Ramsey’s trial

counsel did not object and did not attempt to conduct a re-direct examination of Ramsey.

The parties proceeded to closing argument.

       At the end of the hearing, Ramsey’s probation was revoked in both FB-537 and FD-

1803, and he was ordered to serve as executed time the full terms of imprisonment in both

causes, with the sentence in FD-1803 to be served consecutively to that in FB-537.

       This appeal ensued.

                                 Discussion and Decision

       Ramsey raises a single issue for our review: whether the trial court’s decision, which

revoked his probation and work release placement in Causes FB-537 and FD-1803, was

fundamentally erroneous because the trial court did not permit examination of Ramsey to


                                             4
continue for more than five minutes after a certain point in the State’s cross-examination, and

Ramsey’s attorney did not object, seek a continuance, or attempt to offer further evidence.

       Whether to revoke a defendant’s probation is within the sole discretion of the trial

court. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). We review such decision for an

abuse of discretion. Id. We consider only the evidence most favorable the judgment, and do

not reweigh evidence or reassess the credibility of witnesses. Id. If there is substantial

evidence of probative value to support the trial court’s decision that a defendant has violated

the terms of probation, we will affirm the decision to revoke probation. Id. Where, as here,

we consider the revocation of placement in a community corrections program like work

release, we use the same standard as we do in reviewing the revocation of probation. Cox v.

State, 706 N.E.2d 547, 549 (Ind. 1999).

       A defendant is not entitled to probation or placement in a community corrections

program. Cox, 706 N.E.2d at 549. Such placement “is a matter of grace and a conditional

liberty that is a favor, not a right.” Id. (citations and quotations omitted).

       Probationers are not entitled to the full array of constitutional rights afforded to

defendants at trial, but they are entitled to “procedural and substantive limits on the

revocation of the conditional liberty created by probation.” Woods, 892 N.E.2d at 639

(citations and quotations omitted). In a probation revocation proceeding, due process

requires, at minimum, “(a) written notice of the claimed violations of probation; (b)

disclosure of the evidence []; (c) an opportunity to be heard and present evidence; (d) the




                                               5
right to confront and cross-examine witnesses; and (e) a neutral and detached hearing body.”

Id.

       Here, Ramsey argues that the trial court’s decision during the State’s cross-

examination to limit further testimony from Ramsey to an additional five minutes was

improper. He acknowledges that he lodged no objection to this, but contends that the

limiting of time for testimony was fundamental error. “Fundamental error is error that

constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.” Carden v.

State, 873 N.E.2d 160, 164 (Ind. Ct. App. 2007) (citing Matthews v. State, 849 N.E.2d 578,

587 (Ind. 2006)). For an error to be fundamental, it “must be so prejudicial to the rights of

the defendant as to make a fair trial impossible.” Id. (citing Ritchie v. State, 809 N.E.2d 258,

273 (Ind. 2004)).

       Here, Ramsey testified concerning alleged violations of probation and work release

requirements. The State cross-examined him. During the cross-examination the trial court

interjected, “Counsel, I’m going to allow five (5) more minutes for, uh, questioning.” (Tr. at

86.) The State acknowledged this; Ramsey did not object or request a continuance. After

cross-examination concluded, Ramsey did not offer additional testimony or evidence when

the State concluded its questioning:

       [STATE]:       No further questions, Your Honor.

       [RAMSEY]: No other questions.

       [COURT]:       Any additional evidence?


                                               6
       [RAMSEY]: No, Your Honor.

       [COURT]:      Okay. Argument…

(Tr. at 88-89.)

       Ramsey contends that his theory during closing argument, that he lacks sophistication

and ordinary levels of responsibility, was harmed by the lack of further evidence. However,

it is clear from the transcript that Ramsey had the opportunity to adduce further testimony

and evidence but declined to do so. Under these circumstances, we cannot conclude that the

trial court’s instruction concerning additional time for testimony fundamentally deprived

Ramsey of due process. We accordingly affirm the trial court’s orders revoking his probation

and work release placement in community corrections.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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