MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 May 04 2018, 10:31 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
Vincent L. Scott                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Nettleton,                                      May 4, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        29A02-1710-CR-2308
        v.                                              Appeal from the Hamilton
                                                        Superior Court
State of Indiana,                                       The Honorable Steven R. Nation,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        29D01-1502-F4-1597



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018                  Page 1 of 9
                                             Case Summary
[1]   Michael Nettleton appeals the trial court’s sentencing decision following

      revocation of his placement in community corrections. We affirm.


                                                    Issues
[2]   The State cross-appeals this court’s granting of permission for Nettleton to

      pursue a belated appeal. Nettleton challenges the trial court’s decision not to

      order his placement in the Department of Correction’s Purposeful Incarceration

      program after revoking his placement in community corrections.


                                                     Facts
[3]   On June 18, 2015, Nettleton pled guilty to one count of Level 5 felony stalking,

      in exchange for which the State dismissed a Level 4 felony stalking charge. On

      October 5, 2015, the trial court sentenced Nettleton to a term of three years,

      with two years on work release and one year on electronic home monitoring

      through Hamilton County Community Corrections (“HCCC”). The trial court

      also revoked Nettleton’s probation for a prior Level 5 felony stalking conviction

      and ordered him to serve two years of a previously-suspended sentence; the

      HCCC placement was to be served consecutive to this two-year sentence.

      During the sentencing and probation revocation hearing, the trial court

      indicated that it was reluctant to accept Nettleton’s guilty plea, stating:


              I was going to go ahead and deny the plea and have you be
              sentenced to more time in jail. You’re 24 years old. You’ve had
              four felony convictions. Three of them have ended up in
              violations. And you tested positive for marijuana while you were

      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 2 of 9
              on probation. That’s a horrible record. And if your counsel
              hadn’t said that he really saw a change in your life, the only thing
              I could even see for you was Department of Corrections.


      Tr. Vol. II pp. 24-25.


[4]   Nettleton began serving his placement with HCCC on February 26, 2016. On

      July 19, 2016, Nettleton was arrested and charged with Level 5 dealing in

      cocaine; HCCC filed a notice of violation of community corrections on that

      same date. On July 21, 2016, HCCC filed a second notice of violation of

      community corrections, alleging that Nettleton had tested positive for cocaine

      on July 12, 2016, and that this was his second positive test.


[5]   On August 3, 2017, Nettleton admitted to both community corrections

      violations. On that same date, he also pled guilty to Level 5 felony possession

      of cocaine with intent to deliver, which charge was the basis of the first

      community corrections violation. On September 7, 2017, the trial court held a

      sentencing hearing. With respect to the current case, the court revoked

      Nettleton’s community corrections placement and ordered him to serve three

      years in the Department of Correction (“DOC”). On the new conviction, the

      court imposed an executed sentence of six years, to be served consecutive to the

      three-year sentence.


[6]   At the conclusion of the sentencing hearing, defense counsel requested that the

      trial court order Nettleton’s placement in the DOC’s Purposeful Incarceration

      program. At first, the trial court indicated that it would designate Nettleton for

      such a placement because he appeared to be addicted to drugs. The State
      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 3 of 9
      objected to defense counsel’s request. The trial court, defense counsel, and the

      prosecutor then discussed whether Nettleton would be entitled to a sentence

      modification if he successfully completed the Purposeful Incarceration program

      and whether an order directing Nettleton to participate in the program also

      would have to allow Nettleton to seek such a modification. Ultimately, the trial

      court ruled, “If it has to have the discretion of the Court to modify, then I’ll

      vacate that part of the ruling. The sentence stands.” Id. at 80.


[7]   On October 11, 2017, Nettleton’s appellate counsel filed with this court a

      motion to file a belated notice of appeal. The motion stated that appellate

      counsel recently had been ill and had multiple obligations on his first day back

      in the office—October 10, 2017—which also was the last day to timely file a

      notice of appeal. On October 17, 2017, this court granted the motion to file a

      belated notice of appeal.


                                                  Analysis
                                              I. Cross-Appeal

[8]   We first address the State’s cross-appeal that we should dismiss Nettleton’s

      appeal as untimely. This court already expressly granted Nettleton permission

      to belatedly appeal the trial court’s ruling. We may reconsider an earlier order

      of this court while the case remains pending, although we are reluctant to do so

      unless a more complete record and briefing demonstrates that the previous

      order was contrary to clear authority. See Estate of Mayer v. Lax, Inc., 998

      N.E.2d 238, 245 (Ind. Ct. App. 2013), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 4 of 9
[9]    The State directs us to Post-Conviction Rule 2(1), which provides that “[a]n

       eligible defendant convicted after a trial or guilty plea may petition the trial

       court for permission to file a belated notice of appeal of the conviction or

       sentence” if certain conditions are met. The State contends that Nettleton was

       not an “eligible defendant” under this rule because it does not apply to

       probation or community corrections revocations, citing Dawson v. State, 943

       N.E.2d 1281 (Ind. 2011). The State also notes that Nettleton’s appellate

       counsel failed to explicitly advise this court that he was appealing from a

       community corrections revocation, not an original conviction or sentence.


[10]   Be that as it may, this court did not base its earlier ruling upon Post-Conviction

       Rule 2, which in any event requires a defendant to seek permission to pursue a

       belated appeal from the trial court, not this court. Rather, we expressly based

       our ruling upon Appellate Rule 1 and our supreme court’s decision in In re

       Adoption of O.R., 16 N.E.3d 965 (Ind. 2014). Appellate Rule 1 states in part that

       we “may, upon the motion of a party or the Court’s own motion, permit

       deviation from these Rules.” In O.R., the court made clear that this rule permits

       us to “resurrect” an untimely appeal if there are “extraordinarily compelling

       reasons” to do so. O.R., 16 N.E.3d at 971-72. The failure to timely file a notice

       of appeal is not a “jurisdictional” defect. Id.


[11]   Here, the request for permission to pursue a belated appeal was filed just one

       day after the thirty-day deadline to file a notice of appeal under Indiana

       Appellate Rule 9(a), after accounting for a weekend and a holiday. The cause

       of the minimal delay was counsel’s recent illness. In reliance upon our earlier

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 5 of 9
       ruling, a record has been prepared and briefs have been filed. We see no

       overwhelming reason why we should now avoid addressing the merits of this

       appeal and, thus, we reaffirm our previous decision to allow this appeal to

       proceed. See Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App. 2014)

       (proceeding to consider merits of appeal from denial of post-conviction relief

       where notice of appeal was filed one day late), trans. denied.


                                      II. “Purposeful Incarceration”

[12]   We now turn to the merits of Nettleton’s claim that the trial court should have

       ordered his participation in the DOC’s Purposeful Incarceration program;

       Nettleton makes no claim that his community corrections placement should not

       have been revoked or that an executed sentence of three years was excessive.

       We review a community corrections revocation using the same standard as for

       a probation revocation. Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App.

       2017), trans. denied. Trial courts are allowed flexibility in enforcing lawful

       community corrections orders, addressing an offender’s personal circumstances,

       and protecting public safety. Id. Thus, we review community corrections

       revocation decisions for an abuse of discretion. Id. at 511. An abuse of

       discretion occurs if a decision is clearly against the logic and effect of the

       circumstances before the court. Id.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 6 of 9
[13]   The DOC website describes the Purposeful Incarceration program 1 as follows:


                What is Purposeful Incarceration or “PI”?


                Purposeful Incarceration, or “PI,” is a sentencing order that
                judges can use in situations where the judge is committed to
                modifying a sentence upon the offender’s successful completion
                of an IDOC Addiction Recovery Treatment Program. The
                Department of Correction will provide a substance use disorder
                assessment to determine if clinical treatment is appropriate and
                then make every effort to accommodate quick placement into an
                appropriate level of addiction recovery program.


                What does a judge have to do to refer an offender for
                Purposeful Incarceration?


                The court must indicate on the Abstract of Judgment or
                Sentencing Order that should the offender successfully complete
                the clinically indicated addiction recovery program, the court will
                consider modification of the offender’s sentence. In addition,
                Purposeful Incarceration should be marked on the AOJ as
                required by the INCite program through JTAC[.]


                A judge MUST INCLUDE the following language in the
                sentencing order or abstract of judgment in order for the offender
                to be identified as a Purposeful Incarceration candidate:




       1
         It does not appear the Purposeful Incarceration program is directly governed by a statute or administrative
       rule.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018                 Page 7 of 9
               “Upon successful completion of the clinically appropriate
               substance abuse treatment program as determined by IDOC, the
               court will consider a modification to this sentence.”


       https://www.in.gov/idoc/files/PI%20FAQ%20Updated%2012.15.pdf (last

       visited April 18, 2018).


[14]   The discussion at the time of Nettleton’s revocation and sentencing focused on

       whether, if the trial court directed the DOC to consider him for the Purposeful

       Incarceration program, the court would be required to modify his sentence if he

       completed the program or if it would only have to consider modification. The

       DOC description of the program is not entirely clear, as it first says the program

       is intended for use where a court is “committed” to a sentence modification, but

       then subsequently says a court need only “consider” a sentence modification.

       In any event, it is apparent that a trial court’s decision whether to recommend

       an offender’s placement in the program is purely discretionary, as with other

       sentencing matters, and moreover that a prosecutor is free to object to an

       offender’s request to be placed in the program.


[15]   We see no abuse of discretion in the trial court’s refusal to recommend

       Nettleton’s placement in the Purposeful Incarceration program. Although the

       court may have believed Nettleton could benefit from substance abuse

       treatment while incarcerated, it also is clear that the court was not at all inclined

       to consider a later sentence modification for him or to permit a subsequent

       judge to consider one even if he successfully completed the program. At the

       time of Nettleton’s guilty plea and original sentencing in October 2015, the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 8 of 9
       court already was concerned that his sentence was too lenient in light of his

       criminal history and previous failed attempts at probation. Nevertheless, the

       court was willing to give Nettleton the benefit of the doubt, which he violated

       shortly after beginning his time with HCCC. Also, Nettleton admitted during

       the revocation hearing that he had completed the requirements for the “PI”

       program during one of his previous stints in the DOC, although he was not

       officially in the program. Tr. Vol. II p. 67. Clearly, his participation in that

       program had not prevented his reoffending and resuming use of illegal drugs.

       Because the trial court was not willing to consider modifying Nettleton’s

       sentence if he completed the Purposeful Incarceration program—and it had

       good reason not to do so—it did not abuse its discretion in refusing to

       recommend his participation in the program.


                                                 Conclusion
[16]   We decline to dismiss Nettleton’s appeal. However, the trial court did not

       abuse its discretion in refusing to recommend Nettleton’s placement in the

       DOC’s Purposeful Incarceration program after revoking his community

       corrections placement. We affirm.


[17]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1710-CR-2308 | May 4, 2018   Page 9 of 9
