MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Aug 14 2019, 6:54 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fernando A. Pedroza,                                     August 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-401
        v.                                               Appeal from the Shelby Circuit
                                                         Court
State of Indiana,                                        The Honorable Trent Meltzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         73C01-0811-FB-28



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019                     Page 1 of 9
                                               Case Summary

[1]   Fernando A. Pedroza appeals the revocation of his probation. We affirm.


                                                      Issue

[2]   The sole issue before us is whether the trial court abused its discretion in

      revoking Pedroza’s probation.


                                                      Facts

[3]   On November 18, 2008, Pedroza was charged in Shelby County with Count I,

      armed robbery, a Class B felony; Count II, criminal confinement, a Class B

      felony; and Count III, theft, a Class D felony (the “first Shelby County

      offense”). 1 On December 10, 2009, Pedroza and the State entered into a plea

      agreement in which Pedroza pleaded guilty to Count I; Counts II and III were

      dismissed. Pedroza was sentenced to eleven years with seven years executed,

      the balance suspended to four years probation. Pedroza served his executed

      sentence and was released on June 29, 2012, to begin probation.


[4]   Between June 29, 2012, and February 5, 2013, during the time Pedroza was

      serving probation for the first Shelby County offense, Pedroza was charged with

      committing two new, separate offenses. The first new offense occurred on

      January 17, 2013, in Shelby County (the “second Shelby County offense”); and

      the second new offense occurred on January 28, 2013, in Marion County (the




      1
          Cause No. 73C01-0811-FB-28.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 2 of 9
      “Marion County offense”). Although the second Shelby County offense

      occurred first, Pedroza was charged with and convicted of the Marion County

      offense first. The sequence of events is as follows.


[5]   On February 5, 2013, the State filed a petition to revoke Pedroza’s probation on

      the first Shelby County offense after Pedroza committed the Marion County

      offense on January 28, 2013. 2 In the Marion County offense, Pedroza was

      convicted of burglary, a Class B felony and five counts of robbery while armed

      with a deadly weapon or results in bodily injury to another person, Class B

      felonies. Pedroza was sentenced to twenty-eight years executed to be followed

      by two years of probation.


[6]   According to both Pedroza and the State in their briefs, the petition to revoke in

      the first Shelby County offense was dismissed after Pedroza entered a

      memorandum of understanding (“MOU”) with the State wherein Pedroza

      provided a “clean up” statement to police regarding a pending Shelby County

      investigation. See Appellant’s Br. p. 6; see also Appellee’s Br. p. 7. The petition

      to revoke Pedroza’s probation was dismissed on October 23, 2014.




      2
       In the pre-sentence investigation report (“PSI”) there are two Marion County offenses listed as occurring on
      January 23, 2013, in Cause No. 49G03-1305-FB-27875 and January 28, 2013, in Cause No. 49G03-1301-FB-
      6471. We are unclear whether these are the result of separate events; however, it appears that these causes
      were either combined or for some reason the State only proceeded with charges on the offenses that occurred
      on January 28, 2013. We, therefore, only outline in our opinion the charges for which Pedroza was
      convicted in Marion County.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019                    Page 3 of 9
[7]   Following Pedroza’s statement, on December 5, 2014, Pedroza was charged

      with the second Shelby County offense which he committed while on probation

      in the first Shelby County offense. 3 The second Shelby County offense occurred

      on January 17, 2013—prior to the Marion County offense—however police

      were not able to determine Pedroza’s involvement until after the filing of the

      Marion County offense. In the second Shelby County offense, Pedroza was

      charged with Count I, burglary resulting in bodily injury, a Class A felony;

      Count II, robbery when the defendant is armed or bodily injury resulted, a

      Class B felony; and Count III, theft, a Class D felony. Pursuant to his plea

      agreement, Pedroza pleaded guilty to Counts I and II, and Count III was

      dismissed. The State agreed that, in exchange, Pedroza’s sentences in Count I

      and II would run concurrently to one another and concurrently to the sentence

      in the Marion County offense. On August 17, 2018, Pedroza was sentenced in

      the second Shelby County offense to fifty years executed.


[8]   On June 26, 2018, the State filed another petition to revoke Pedroza’s probation

      in the first Shelby County offense as a result of Pedroza’s second Shelby County

      offense, which Pedroza also committed while on probation. A fact finding

      hearing was held on November 15, 2018 and the trial court requested briefs

      regarding the issue of whether the State timely filed its petition to revoke

      probation. On January 17, 2019, the trial court held a dispositional hearing and

      determined that it could revoke Pedroza’s probation based on the State’s



      3
          Cause No. 73D01-1412-FA-23.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 4 of 9
       petition. The trial court revoked Pedroza’s probation in the first Shelby County

       offense and ordered Pedroza to serve four years in the Indiana Department of

       Correction (“DOC”). Pedroza now appeals.


                                                    Analysis

[9]    Probation serves as an “alternative to commitment in the [Department of

       Correction]” and is granted “at the sole discretion of the trial court.” Luke v.

       State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016) (citing Cox v. State, 706 N.E.2d

       547, 549 (Ind. 1999), reh’g denied), trans. denied. Probation is “a ‘matter of grace’

       and a ‘conditional liberty that is a favor, not a right.’” Luke, 51 N.E.3d at 421

       (quoting Cox, 706 N.E.2d at 549). “[A] revocation hearing is civil in nature, the

       State needing only to prove the alleged violations by a preponderance of the

       evidence.” Luke, 51 N.E.3d at 421. A violation of a single probation condition

       is sufficient to revoke probation, and if “there is substantial evidence of

       probative value to support the trial court’s conclusion that a defendant has

       violated any terms of probation, we will affirm its decision to revoke.” Id.


[10]   Indiana Code Section 35-38-2-3(a), which is at issue here, provides:


               The court may revoke a person’s probation if:


               (1) the person has violated a condition of probation during the
                   probationary period; and


               (2) the petition to revoke probation is filed during the
                   probationary period or before the earlier of the following:



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 5 of 9
                        (A) One (1) year after the termination of probation.


                        (B) Forty-five (45) days after the state receives notice of the
                            violation.


       Here, Indiana Code Section 35-38-2-3(a)(2)(A) or (B) would not apply because

       the State was aware of Pedroza’s violation when he was charged with the

       second Shelby County offense in 2014.


[11]   Pedroza argues that the trial court lacked the authority to revoke his probation

       because the State’s petition to revoke was untimely filed. Specifically, the

       disagreement between Pedroza and the State appears to be whether Pedroza

       was still in the probationary period on June 26, 2018, when the State filed the

       petition to revoke. Pedroza contends that his probationary period in the first

       Shelby County offense ended on March 16, 2018, while he was incarcerated for

       his other offenses, whereas the State argues that Pedroza’s probationary period

       was tolled due to Pedroza’s incarceration. It does not appear that the parties

       disagree that Pedroza’s probation was at least tolled between when the State

       filed the petition to revoke probation on February 5, 2013, and when the

       petition was dismissed on October 23, 2014. See Ind. Code § 35-38-2-3(c) (“The

       issuance of a summons or warrant tolls the period of probation until the final

       determination of the charge.”).


[12]   In short, we must determine whether Pedroza’s probationary period began

       running again on October 23, 2014, when the State dismissed the initial petition

       to revoke probation, and while Pedroza was still incarcerated. If the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019     Page 6 of 9
       probationary period was tolled due to Pedroza’s constant incarceration, the

       State’s petition was timely filed; however, if Pedroza’s probationary period was

       completed while he was incarcerated, the State’s petition would have been

       untimely filed and Pedroza’s probation would have been improperly revoked.


[13]   In Hart v. State, 889 N.E.2d 1266, 1271 (Ind. Ct. App. 2008), our Court stated:


               Thus, “[p]robation is a criminal sanction wherein a convicted
               defendant specifically agrees to accept conditions upon his
               behavior in lieu of imprisonment.” Abernathy v. State, 852 N.E.2d
               1016, 1020 (Ind. Ct. App. 2006) (emphasis added). “This gives
               the defendant an opportunity to show he is able to rehabilitate
               himself and become a useful member of society without serving
               his time in prison” as well as “gives the sentencing court an
               opportunity to observe the defendant’s conduct during this
               period.” White v. State, 560 N.E.2d 45, 46 (Ind.1990). Given the
               rehabilitative purpose of probation, a process which can only be
               accomplished outside the confines of prison, it is axiomatic that
               “[o]ne may not be simultaneously on probation and serving an executed
               sentence.” Thurman v. State, 162 Ind. App. 576, 320 N.E.2d 795,
               797 (Ind. 1974).


       Hart v. State, 889 N.E.2d 1266, 1271 (Ind. Ct. App. 2008) (emphasis added).

       While the facts in Hart are distinguishable from the present case because Hart

       had not begun the actual monitoring portion of probation whereas Pedroza had

       begun the actual monitoring portion of probation, other facts in Pedroza’s case

       allow us to reach the same conclusion.


[14]   Under the circumstances, Pedroza cannot convince us that he was

       simultaneously completing his probation while incarcerated. We need not


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 7 of 9
       address the issue of whether a defendant can serve his actual probation and

       executed sentence simultaneously because, in our case, Pedroza was required to

       serve his sentences consecutively. Specifically, Pedroza committed two

       probation violations by committing new offenses while on probation for the first

       Shelby County offense. Pursuant to Indiana Code Section 35-50-1-2(e):


               If, after being arrested for one (1) crime, a person commits
               another crime:


                        (1) before the date the person is discharged from probation,
                            parole, or a term of imprisonment imposed for the first
                            time; or


                        ...


               the terms of imprisonment for the crimes shall be served
               consecutively, regardless of the order in which the crimes are
               tried and the sentences are imposed.


[15]   Accordingly, the sentences for the first Shelby County offense and the second

       two offenses (the second Shelby County offense and the Marion County

       offense, which run concurrently to one another pursuant to a plea agreement)

       were required to run consecutively. Thus, because the sentences are to be

       served consecutively, Pedroza’s executed sentence and probation sentence

       cannot be served concurrently. Accordingly, it cannot be that probation for one

       offense, which runs consecutively to the sentence in another offense, could be

       served at the same time.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 8 of 9
[16]   If we were to allow the result Pedroza requests, we would effectively overrule

       the statute regarding mandatory consecutive offenses by allowing the first

       Shelby County offense to run concurrently with the other offenses, instead of

       consecutively as the statute requires. Accordingly, the State’s petition to revoke

       was timely filed, and the trial court had the discretion to revoke Pedroza’s

       probation. The trial court did not abuse its discretion in finding the State’s

       petition timely filed.


                                                  Conclusion

[17]   The trial court did not abuse its discretion in revoking Pedroza’s probation. We

       affirm.


[18]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-401 | August 14, 2019   Page 9 of 9
