MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Sep 24 2018, 9:31 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone, IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shannon Graves,                                          September 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1712-CR-2986
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C06-1407-F5-1329



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018         Page 1 of 6
                                          Case Summary
[1]   Shannon Graves appeals the trial court’s order requiring him to serve the

      balance of his sentence for burglary and theft in the Indiana Department of

      Correction after violating his probation. We affirm.



                            Facts and Procedural History
[2]   In June 2015, Graves pled guilty to Level 5 felony burglary and Level 6 felony

      theft. The trial court sentenced him to five years, with three years executed and

      two years suspended to probation. The trial court gave Graves “the privilege of

      serving [his] executed time on in-home detention.” Appellant’s App. Vol. II p.

      67. Graves was placed on in-home detention on July 1, 2015.


[3]   The next month, the home-detention program filed a notice of violation of

      executed/suspended sentence alleging that Graves had violated the conditions

      of his in-home detention and probation by using illegal drugs and failing to pay

      fees. The home-detention program amended its notice in September, alleging

      that Graves had, once again, violated the conditions of his in-home detention

      and probation by removing his home-detention transmitter and committing the

      crimes of escape and theft. In February 2016, after an evidentiary hearing, the

      trial court found that Graves had violated the conditions of his in-home

      detention. Id. at 101. The court ordered Graves to serve two years, with credit

      for time already served, in the Department of Correction and “to return to [the]

      Probation Department for balance of sentence.” Id. at 98; see also id. at 102


      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018   Page 2 of 6
      (“Defendant to return to Probation following release to serve balance of

      sentence.”). Graves was released from the DOC in January 2017.


[4]   In May 2017, the probation department filed a notice of violation of probation

      alleging that Graves had failed to keep the probation department informed of

      his address and to report to the probation department. Five months later, the

      probation department amended its notice and alleged that Graves had, again,

      violated his probation by committing burglary and other offenses in Cass

      County in August 2017. In November 2017, the trial court held an evidentiary

      hearing to determine whether Graves had violated his probation. At the

      beginning of the hearing, Graves admitted that he violated his probation by (1)

      failing to keep the probation department informed of his address and (2) failing

      to report. Tr. pp. 5-6. The court noted Graves’s admissions and then heard

      evidence regarding the alleged criminal offenses.


[5]   Officer Bryce Hall, a patrolman with the Logansport Police Department,

      testified that on August 25, 2017, while investigating a burglary, he spoke with

      Bethami Skinner at her apartment. Officer Hall testified that Skinner told him

      that Graves was her boyfriend, she had overheard him plan the burglary, and

      she saw him bring “multiple pill bottles with the name Susan and credit cards

      with the name Susan” into their apartment. Id. at 10 (Susan was the name of

      the burglary victim). During this portion of Officer Hall’s testimony, Graves

      objected, arguing that what Skinner told Officer Hall was “self-serving” and

      “not reliable hearsay.” Id. at 11, 38. The trial court overruled the objection and

      found that while Skinner may have had “a reason not to be completely honest

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018   Page 3 of 6
      with the officer,” her testimony was still admissible as reliable hearsay. Id. at

      12; see also id. at 40. At the end of the evidentiary hearing, the trial court found

      that the State proved by a preponderance of the evidence that Graves violated

      his probation by committing burglary.


[6]   At the dispositional hearing, the trial court sentenced Graves to serve “the

      balance of his sentence” in the DOC. Id. at 53. The court explained that its

      sentence was based on Graves’s two admitted violations and its finding that he

      committed burglary:


               [Burglary], I can’t say that [it] doesn’t play a [role] but it’s not
               one of the major [ones], it’s probably equal. [A]nd why do I say
               that? Formal supervision is just that, supervision. And if you
               don’t report and you don’t notify your probation officer . . . that’s
               not supervision. That’s the exact opposite of what is designed by
               probation. [I]t is a[n] objective act that you have engaged in
               saying that I don’t want to be supervised . . . and you made
               admissions to that . . . and in addition to that comment I do have
               a new criminal offense that I found against you . . . . I have found
               that the State has met its burden of proof. [A]nd so for those two
               (2) reasons the Court’s sanction is to revoke the balance to the
               Department of Correction[] less . . . credit.


      Id. at 50-51. The trial court’s sanctions order stated that Graves was to serve

      five years in the DOC less 879 days of credit time.1




      1
        Graves argues that the sanctions order and abstract of judgment contain a “scrivener’s error” because they
      provide that his probation-violation sentence is five years instead of three. Appellant’s Br. p. 16. Although
      Graves might be technically correct, see Ind. Code § 35-38-2-3(h), he has not demonstrated any harm. In
      sentencing Graves to five years for violating his probation, the trial court gave him credit for every day he

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018          Page 4 of 6
[7]   Graves now appeals.



                                  Discussion and Decision
[8]   Graves makes a two-part argument. First, he contends that the trial court’s

      finding that he violated his probation by committing burglary was based on

      hearsay that was not “substantially reliable” and that the finding should

      therefore be reversed. Appellant’s Br. p. 15. Graves then argues that, with that

      finding reversed, the trial court’s sanction is inappropriate because “[i]t cannot

      be concluded that the same sanction would have been imposed in this case if

      the burglary had not been improperly relied on.” Id. at 16. He asks that the

      case be “remanded to the trial court to reconsider what sanction to impose for

      the defendant’s admitted violations of failure to report and failure to keep

      probation informed of his address.” Id. at 17.


[9]   We do not need to address the hearsay issue Graves raises. The trial court

      made clear that it considered his other violations to be just as serious as

      committing burglary. See Tr. pp. 50-51. As such, even if we were to agree with

      Graves that the burglary finding was erroneous, we would not send the case

      back to the trial court, since we are confident that it would have imposed the

      same sanction regardless of the burglary finding. And even if we thought that




      had served up to the time of disposition—a total of 879 days. As such, regardless of the trial court’s
      characterization of the sanction, Graves will not ultimately serve any more time than he was originally
      sentenced to. We will not reverse based on harmless error. See Ind. Appellate Rule 66(A); Henriquez v. State,
      58 N.E.3d 942, 944 (Ind. Ct. App. 2016), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018          Page 5 of 6
       the burglary finding was critical to the trial court’s sentence, a remand to the

       trial court, which is the relief Graves seeks, would be futile. In May of this

       year, after Graves filed his notice of appeal in this case, he pled guilty to the

       burglary in Cass County. State v. Shannon Graves, No. 09C01-1708-F4-000020

       (Cass Cir. Ct. May 17, 2018). Thus, on remand, Graves would end up in the

       same position he is now because he has since been convicted of committing the

       very criminal offense he claims not to have committed. For these reasons, we

       will not disturb the trial court’s resolution of this matter.


[10]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2986 | September 24, 2018   Page 6 of 6
