MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                       Jul 27 2018, 9:24 am
regarded as precedent or cited before any
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
Donald E.C. Leicht                                        Curtis T. Hill, Jr.
Kokomo, Indiana                                           Attorney General

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Phillips,                                           July 27, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-210
        v.                                                Appeal from the Howard Superior
                                                          Court
State of Indiana,                                         The Honorable William C.
Appellee-Plaintiff                                        Menges, Jr., Judge
                                                          Trial Court Cause No.
                                                          34D01-1503-F2-298



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018                   Page 1 of 5
                                             Case Summary
[1]   Keith Phillips appeals the trial court’s order revoking his previously suspended

      sentence for violation of the terms and conditions of his re-entry program. He

      claims that the trial court abused its discretion in failing to award him credit

      time for the time he spent incarcerated during his participation in the program.

      Finding no abuse of discretion, we affirm.


                                  Facts and Procedural History
[2]   In March 2015, the State charged Phillips with level 2 felony dealing in cocaine,

      level 3 felony dealing in cocaine, level 6 felony maintaining a common

      nuisance, and class B misdemeanor possession of marijuana. On September 30,

      2015, the State and Phillips entered into a plea agreement pursuant to which

      Phillips pled guilty to level 3 felony possession of cocaine in exchange for the

      dismissal of the other charges. The parties also agreed that Phillips would be

      sentenced to fifteen years executed with ten years suspended to probation. The

      agreement provided that a modification of sentence by the trial court would be

      considered if Phillips completed a therapeutic community program while

      incarcerated. The trial court accepted the agreement and sentenced Phillips

      accordingly.


[3]   A little less than one year later, on September 22, 2016, Phillips requested a

      modification of sentence after he completed the Westville Therapeutic

      Community substance abuse treatment program. On November 2, 2016, the

      trial court modified Phillips’s sentence by suspending the balance of his


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018   Page 2 of 5
      executed sentence to probation and approving his participation in the

      Department of Correction Community Transition Program. “As a specific

      condition of the Community Transition Program and Probation, [Phillips]

      [was] ordered to successfully complete, and make satisfactory arrangements to

      pay for the Howard County Re-Entry Program.” Appellant’s App. Vol. 2 at 68.

      Phillips signed a program participation agreement in which he agreed to waive

      his right to earned credit time for any time spent in jail or otherwise confined

      during his participation in the re-entry program.


[4]   On March 9, 2017, the trial court found Phillips in indirect contempt of court

      for violating the terms of the re-entry program and issued an arrest warrant.

      Phillips was taken into custody on March 10, 2017. Apparently, he was

      subsequently released and he absconded to Nevada. On April 17, 2017, the

      trial court found that Phillips again violated the terms of the re-entry program

      for failure to appear and issued another warrant. Phillips was subsequently

      arrested in Nevada and brought back to Indiana. A notice of termination from

      the re-entry program was filed on November 22, 2017. The trial court held a

      hearing and terminated Phillips’s participation in the re-entry program on

      December 20, 2017.1 That same day, the State filed a petition to revoke

      Phillips’s probation and, following a hearing on January 19, 2018, the trial




      1
        Phillips claims in his brief that he was continually incarcerated for his re-entry program violations from
      March 10, 2017, through December 20, 2017, when he was terminated from the program. The record does
      not support this assertion. During the probation revocation hearing, Phillips testified that he was
      incarcerated from March 10 until sometime in April 2017, when he left Indiana. He stated that he was later
      arrested in Nevada and brought back to Indiana “in about June” of 2017. Tr. Vol. 2 at 20.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018                      Page 3 of 5
      court entered its order revoking Phillips’s previously suspended sentence. The

      court awarded him credit for thirty actual days served plus ten days of good

      time credit. This appeal ensued.


                                     Discussion and Decision
[5]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). It is within the

      trial court’s discretion to determine probation conditions and to revoke

      probation if the conditions are violated. Id. “In appeals from trial court

      probation violation determinations and sanctions, we review for abuse of

      discretion.” Id. An abuse of discretion occurs where the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances, or when the

      trial court misinterprets the law. Id.


[6]   Phillips argues that, in revoking his probation and imposing his previously

      suspended sentence, the trial court abused its discretion in failing to award him

      credit for the time he spent incarcerated as a sanction for his violations of the re-

      entry program. Credit time is a matter of statutory right, and for that reason

      trial courts generally do not have discretion in awarding or denying such credit.

      Meadows v. State, 2 N.E.3d 788, 791 (Ind. Ct. App. 2014). However, Phillips

      fails to acknowledge the provision of the re-entry program participation

      agreement in which he voluntarily and intentionally waived his right to earn

      credit time for any sanction under the re-entry program. This Court has


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018   Page 4 of 5
      determined that a defendant may waive the right to credit time as part of a

      written participation agreement. House v. State, 901 N.E.2d 598, 600 (Ind. Ct.

      App. 2009). Paragraph nine of the participation agreement for the re-entry

      program specifically states, “Participant agrees to waive his right to earn credit

      time for any time spent in jail or otherwise confined to which he would

      otherwise be entitle[d] pursuant to Indiana law during participation in the

      Reentry Program.” Appellant’s App. Vol. 2 at 70. Thus, Phillips was not

      eligible to earn credit for time served while he was participating in the re-entry

      program; he was eligible to begin earning credit for time served only once his

      participation in the program was terminated on December 20, 2017. He was,

      therefore, only entitled to credit time from December 20, 2017, the date he was

      no longer participating in the re-entry program, until January 19, 2017, the date

      his probation was revoked. When the trial court revoked his suspended

      sentence, it gave Phillips credit for thirty actual days served while awaiting the

      disposition of the case plus ten days of good time credit. The trial court did not

      abuse its discretion.


[7]   Affirmed.


      Najam, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018   Page 5 of 5
