MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 15 2019, 8:44 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristie Abner,                                           January 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-200
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Carl H. Taul,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69D01-1609-F6-228



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019                   Page 1 of 7
                                      Statement of the Case
[1]   Kristie Abner appeals the sentence the trial court imposed after she admitted to

      violating the terms of her placement on home detention. We affirm.


                                                     Issue
[2]   Abner raises one issue, which we restate as: whether the trial court abused its

      discretion in ordering her to serve her previously-suspended sentence.


                               Facts and Procedural History
[3]   On September 20, 2017, Abner pleaded guilty to unlawful sale of a precursor, a

      Level 6 felony. The trial court accepted the plea agreement and sentenced

      Abner to serve 910 days, with credit for ten days served and the remainder of

      her sentence suspended to probation.


[4]   On November 13, 2017, the State filed a petition for a probation violation

      hearing, alleging Abner violated a condition of probation by failing to appear

      for two previously-scheduled meetings with probation department staff. On

      December 12, 2017, the trial court held a fact-finding hearing. During the

      hearing, Abner admitted to violating a condition of probation as alleged by the

      State. The court revoked 545 days of her previously-suspended sentence, with

      credit for fourteen days served. The court further determined that Abner would

      serve the remaining 531 days on home detention.


[5]   Later, on December 12, 2017, Abner met with a probation officer for a home

      detention intake meeting. She was asked to identify her intended dwelling, and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 2 of 7
      she provided her father’s address in Moores Hill, Indiana, along with his

      telephone number. The probation officer instructed Abner to go to that address

      and remain there until her next probation appointment on December 18, 2017.


[6]   On the evening of December 12, 2017, probation officers received repeated

      automatic alerts that Abner had left her designated address. They called

      Abner’s father, who stated he believed that Abner was staying with a friend.


[7]   The officers eventually contacted Abner very early the next morning in Rising

      Sun, Indiana, after receiving fifty-two automatic alerts. Abner later claimed she

      had left a voicemail with the probation office explaining that her father had not

      been home that evening, and that she had to go stay with a friend, but the

      probation officers never received such a voicemail. Further, Abner never

      contacted the police for assistance, and she did not return to jail.


[8]   On December 13, 2017, the State filed a “request for home detention violation

      and motion to convert hearing,” claiming Abner violated a condition of her

      placement by failing to remain in her home. Appellant’s App. Vol. 2, p. 37.

      The State separately filed a new case against Abner, alleging she committed the

      offense of failing to be in a location not previously approved by community

      corrections, a Level 6 felony.


[9]   On December 20, 2017, the trial court held a fact-finding hearing. Abner, who

      had waived the assistance of counsel, admitted she violated the terms of her

      home detention placement. The State asked the court to order Abner to serve

      the remainder of her suspended sentence in jail, but Abner asked to remain on

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 3 of 7
       home detention. The court ordered Abner to serve the remainder of her

       previously revoked sentence, a term of 531 days, in jail. This appeal followed.


                                    Discussion and Decision
[10]   Abner claims the trial court should not have ordered her to serve an executed

       sentence, characterizing her violation as “technical” in nature. Appellant’s Br.

       p. 10. The State argues Abner’s claim is moot because she has already “likely”

       served her sentence. Appellee’s Br. p. 10. Although the State’s calculations

       may be correct, we decline to determine Abner’s claim is moot in the absence of

       either a concession by Abner that she has finished serving her sentence or other

       evidence in the record demonstrating that she has been released from

       incarceration. Cf. Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012) (determining

       appellant’s credit time claim was moot because he conceded that he had served

       his sentence).


[11]   A reviewing court treats a petition to revoke placement in a community

       corrections program, including home detention, the same as a petition to revoke

       probation. McCauley v. State, 22 N.E.3d 743, 746 (Ind. Ct. App. 2014), trans.

       denied. Probation is a matter of grace left to trial court discretion, not a right to

       which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188

       (Ind. 2007). A defendant serving a term of probation specifically agrees to

       accept conditions upon his or her behavior instead of imprisonment. Jones v.

       State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). The conditions are designed




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 4 of 7
       to ensure that the probation serves as a period of genuine rehabilitation and that

       the public is not harmed by a probationer living within the community. Id.


[12]   When a trial court determines a person has violated a condition of probation,

       the court may: (1) continue the person on probation; (2) extend the

       probationary period; and/or (3) order execution of all or part of the previously-

       suspended sentence. Ind. Code § 35-38-2-3(h) (2015). We review a court’s

       choice of sanctions for an abuse of discretion. Castillo v. State, 67 N.E.3d 661,

       664 (Ind. Ct. App. 2017), trans. denied. An abuse of discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances.

       Prewitt, 878 N.E.2d at 188.


[13]   Here, the trial court ordered Abner to serve her sentence on home detention

       after she violated the terms of probation by failing to attend previously-

       scheduled meetings with her probation officer. After the court placed Abner on

       home detention, she immediately violated the terms of her placement by failing

       to remain at the address she had given to her probation officer. Abner claimed

       that she intended to stay at her father’s home but was unaware that he was out

       of town on the day of her release, and she was forced to stay elsewhere. Upon

       discovering his absence, she did not contact the probation office or the police,

       and she did not return to jail. Instead, she traveled to another town. In

       addition, probation officers had great difficulty contacting her because the only

       telephone number she had provided was her father’s.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 5 of 7
[14]   Abner’s violation of the conditions of home detention was more than merely

       technical. Alternatives to incarceration allow probationers to remain in their

       communities if they agree to submit to close supervision of their movements,

       among other restrictions. Abner’s failure to return to jail or otherwise notify

       probation officers of her location fundamentally undermined that arrangement.

       Jenny Wise, the Assistant Director of Ripley County’s Office of Court Services,

       testified that she was concerned Abner was “just not going to abide by home

       detention rules.” Tr. p. 5.


[15]   Abner cites four cases, noting that in each case the Court of Appeals reversed

       the trial court’s sanction for probation or community corrections violations.

       We have reviewed those cases and conclude they are not persuasive because

       they are factually dissimilar from Abner’s case. See Johnson v. State, 62 N.E.3d

       1224, 1231 (Ind. Ct. App. 2016) (Johnson’s failures to remain at authorized

       locations were minor in scope; Johnson had limited mental functioning);

       Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct. App. 2016) (trial court

       erroneously believed it was required under terms of plea agreement to revoke

       placement); Ripps v. State, 968 N.E.2d 323, 328 (Ind. Ct. App. 2012) (Ripps

       attempted in good faith to comply with conditions of probation and had a

       terminal medical condition); and Puckett v. State, 956 N.E.2d 1182, 1188 (Ind.

       Ct. App. 2011) (trial court’s sentence in probation revocation proceeding based

       on improper factors including trial court’s opinion on sex offender registry).

       The trial court acted well within its discretion in ordering Abner to serve her




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 6 of 7
       previously suspended sentence in jail. See Jones, 838 N.E.2d at 1149 (no abuse

       of discretion in lengthy sentence imposed for second probation violation).


                                                Conclusion
[16]   For the reasons stated above, we affirm the judgment of the trial court.


[17]   Affirmed.


[18]   Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019   Page 7 of 7
