MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jul 21 2016, 6:16 am

this Memorandum Decision shall not be                                  CLERK
                                                                   Indiana Supreme Court
regarded as precedent or cited before any                             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
Brian R. Chastain                                        Gregory F. Zoeller
Dillman, Chastain, Byrd, LLC                             Office of Attorney General
Corydon, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael C. Stollings,                                    July 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1512-CR-2123
        v.                                               Appeal from the Floyd Superior
                                                         Court
The State of Indiana,                                    The Honorable Susan L. Orth
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         22D01-1407-FC-1248



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016       Page 1 of 9
                                              Case Summary
[1]   Michael C. Stollings (“Stollings”) appeals the revocation of his probation in

      Cause No. 22D01-1407-FC-1248 in Floyd Superior Court. He brings two issues

      in his appeal: (1) whether there was sufficient evidence to support the court’s

      decision to revoke his probation; and (2) whether he was entitled to credit time

      applicable to the probation violation sanction. We affirm.



                               Facts and Procedural History
[2]   On or about May 27, 2014, Stollings beat his wife, 1 Shannon Grabner

      (“Grabner”), resulting in brain trauma and serious bodily injury. Stollings was

      charged with Battery Resulting in Serious Bodily Injury, a Class C felony.2

      Stollings entered into a plea agreement, and on January 22, 2015, he was

      sentenced to five years, three years executed, two suspended. In light of this

      offense, the trial court issued a no-contact order against Stollings for the benefit

      of Grabner, and a protective order against Stollings for the benefit of Grabner,

      Shirley Lay (“Lay”), and two others. (Confidential Exhibit at 12) Both orders

      prohibited Stollings from going anywhere he knew Grabner would be.


[3]   On August 27, 2015, Stollings was released to probation after completing the

      executed portion of his sentence. (Tr. at 59) He was expected to report to a



      1
          Grabner and Stollings have since divorced.
      2
        Ind. Code § 35-42-2-1(a)(3). We refer to the version of the statute in effect at the time of his offense. Under
      the revised criminal code, Stollings’s offense would be considered a Level 5 felony.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016                  Page 2 of 9
      probation intake meeting with probation officer Clare Banet (“Banet”) on

      September 22, 2015. (Tr. at 60) The appointment was scheduled for two

      o’clock that afternoon. (Tr. at 60)


[4]   Stollings did not attend that meeting. Instead, he was walking down an alley

      nearby Grabner’s residence in New Albany. There he encountered Jerry Clark

      (“Clark”), a roommate of Lay and Grabner. Lay, who had seen Stollings near

      the property moments before, called the police. (Tr. at 51)


[5]   Officer Juliann Condra (“Officer Condra”) was dispatched to the residence after

      Lay had called law enforcement. Upon her arrival, she interviewed Grabner,

      Lay, and Clark, and learned that Stollings had left walking south down the

      alley. (Tr. at 6, 8) Officer Condra walked down the alley and spotted Stollings

      walking about 200 feet away. (Tr. at 7) When Officer Condra called after him,

      he stopped. (Tr. at 23) When she approached Stollings, Officer Condra noted

      that he smelled of alcohol, was unsteady on his feet, and acted aggressively.

      (Tr. at 8) Officer Condra did not perform a field sobriety test because of

      Stollings’s aggressive nature. (Tr. at 8) She arrested Stollings on 4:20 p.m.,

      more than two hours after his missed probation appointment. (Tr. at 60)


[6]   Following his arrest, Stollings was charged with two counts of invasion of

      privacy, Class A misdemeanors,3 and one count of public intoxication, a Class




      3
        I.C. § 35-46-1-15.1. Stollings is charged under subsection (2) with violating an ex parte protective order
      issued under I.C. § 34-26-5, and violating a no contact order as a condition of probation under subsection (6).

      Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016                Page 3 of 9
      B misdemeanor,4 under the cause number 22D01-1509-CM-1776 (“invasion

      charges”). On October 5, 2015, Banet issued a Notice of Probation Violation,

      ordering Stollings to appear in court to admit or deny the violation. (App. 43)

      The notice alleged that Stollings had violated the following terms of his

      probation: “good behavior; failure to report to Probation Officer as directed;

      commitment of a new criminal offense; use of alcohol and/or drugs not

      prescribed by [a] physician; violation of No Contact Order as ordered on

      5/28/15; and failure to pay Probation User Fees totaling $190.” (App. 43)


[7]   On the following day, Stollings had a pre-trial hearing where he was appointed

      counsel for the probation violation hearing. The trial court also set bond for the

      invasion case. On November 4, 2015, the trial court held Stollings’s probation

      revocation hearing. The court found that Stollings had violated the terms of his

      probation. The court thus revoked Stollings’s two-year suspended sentence and

      ordered that those two years be served in the Department of Correction. The

      court did not award any credit time for pretrial confinement. This appeal

      followed.



                 Insufficient Evidence of Probation Violation
[8]   Stollings first claims that there was insufficient evidence to prove that he had

      violated the terms of his probation. A defendant is not entitled to serve a




      4
          I.C. § 7.1-5-1-3(a).


      Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 4 of 9
       sentence on probation. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App.

       2009). Rather, such placement is a “matter of grace” and a “conditional liberty

       that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct.

       App. 1995). While an offender is on probation, Indiana Code Section 35-38-2-

       1(b) provides in relevant part: “[i]f the person commits an additional crime, the

       court may revoke the probation.”


[9]    During a revocation hearing, the trial court must make two determinations: (1)

       whether a violation of the terms of probation has occurred; and (2) if the

       probationer has violated the terms, what sanctions should be imposed. Pierce v.

       State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). One violation of a condition of

       probation is enough to support a probation revocation. Id. Under Indiana law,

       the State must prove a probation violation by a preponderance of the evidence.

       Ind. Code § 35-38-2-3(f).


[10]   When reviewing a claim of insufficient evidence, we consider only the evidence

       most favorable to the judgment. Johnson v. State, 692 N.E.2d 485, 486 (Ind. Ct.

       App. 1998). We neither reweigh the evidence nor judge the credibility of the

       witnesses. Id. We will affirm when there is substantial probative evidence to

       support the trial court’s conclusion that the probationer violated his probation.

       Id.


[11]   In the Notice of Probation Violation, the State alleged six violations as grounds

       for probation revocation, (App. 43); however, the trial court found four

       violations: that Stollings used alcohol; that he violated the terms of the No


       Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 5 of 9
       Contact and Protective orders while on probation; that he failed to report to his

       probation officer; and that he was charged with another criminal offense while

       on probation, specifically, public intoxication. (Tr. at 65-66)


[12]   Both Clark and Lay testified to seeing Stollings leaning against the fence

       surrounding Grabner’s residence while she was there. This action was a direct

       violation of the Protective Order, which states “The Respondent (Stollings) is

       ordered to stay away from the residence and/or place of employment of the

       Petitioner (Grabner).” (Confidential Exhibit at 12; emphasis added) Stollings

       also directly violated the No Contact Order, which prohibits him from visiting

       any locations Grabner is known to be located. (App. 31) Furthermore, Officer

       Condra testified that when she approached Stollings, he smelled of alcohol, was

       unsteady, and acted aggressively. Although she did not have Stollings perform

       a field sobriety test, such measures are not necessary to prove intoxication. See,

       e.g., Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.

       denied; Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999). Lastly,

       Banet testified that Stollings did not come to his probation intake meeting

       scheduled on the same day as the incident. Thus, there is sufficient evidence

       supporting the trial court’s finding that Stollings violated his probation.



                                               Credit Time
[13]   Stollings next claims that the trial court erred in not awarding any credit time

       for his pretrial confinement in imposing the probation revocation sanction.

       Defendants are entitled by statute to credit for time spent in confinement before

       Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 6 of 9
       sentencing. McAllister v. State, 913 N.E.2d 778, 782 (Ind. Ct. App. 2009).

       Generally, because presentence jail time credit is a matter of statutory right,

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

       State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007).


[14]   A non-credit-restricted felon awaiting trial or sentencing on a misdemeanor

       charge is assigned to Class A. I.C. § 35-50-6-4(a). “A person assigned to Class

       A earns one (1) day of good time credit for each day the person is imprisoned

       for a crime or confined awaiting trial or sentencing.” I.C. § 35-50-6-3.1(b).

       Credit time is earned for time spent in confinement as a result of the charge for

       which the defendant is being sentenced. Bischoff v. State, 704 N.E.2d 129, 130

       (Ind. Ct. App. 1998), trans. denied.


[15]   However, if, after being arrested for a crime, a person commits another crime

       before the date the person is to be discharged from probation, “the terms of

       imprisonment shall be served consecutively, regardless of the order in which the

       crimes are tried and sentences are imposed.” I.C. § 35-50-1-2(e). When

       consecutive sentences are required, credit time cannot be earned against each

       underlying sentence. Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App. 2009).

       Such an interpretation would result in “double credit,” essentially allowing the

       sentences to be served concurrently, not consecutively. French v. State, 754

       N.E.2d 9, 17 (Ind. Ct. App. 2001); Diedrich v. State, 744 N.E.2d 1004, 1006

       (Ind. Ct. App. 2001) (citing Stephens v. State, 735 N.E.2d 278, 284 (Ind. Ct. App.

       2000), trans. denied).



       Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 7 of 9
[16]   The key question in this case is whether Stollings was at any point incarcerated

       as a result of his probation violation charges. On September 22, 2015, Stollings

       was arrested for public intoxication and two counts of invasion of privacy for

       violating the No Contact and Protective Orders while on probation for the

       battery case. He remained incarcerated on the invasion charges when the

       Notice of Probation Violation was filed on October 5, 2015. It is undisputed

       that this time was served as a result of the new charges filed on September 22.

       Stollings asserts his incarceration for the probation violation started on October

       6, 2015, the day of his pre-trial hearing on both the invasion charges and the

       probation revocation. However, he provides little support on which this

       conclusion can stand. During that hearing, the trial court did not set bond in

       the probation violation, but did set bond for the invasion charges. Furthermore,

       the language of the Notice of Probation Violation is merely an order to appear,

       not a warrant for Stollings’s arrest in connection with the probation violation.

       Thus, it is apparent that Stollings’s pretrial confinement was not a result of the

       probation violation, but rather of the invasion charges for which he was initially

       arrested on September 22, 2015. As such, to grant Stollings credit time from

       October 6, 2015, to November 4, 2015, would be to essentially grant Stollings

       double credit on potential consecutive sentences.



                                               Conclusion




       Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 8 of 9
[17]   There was sufficient evidence upon which the trial court could conclude that

       Stollings violated his probation. The trial court did not err when it denied

       Stollings credit time for his pretrial incarceration.


[18]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1512-CR-2123 | July 21, 2016   Page 9 of 9
