      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                         Sep 20 2016, 8:50 am
      this Memorandum Decision shall not be
      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
      Stacy R. Uliana                                          Gregory F. Zoeller
      Bargersville, Indiana                                    Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jesse E. Kaufman,                                        September 20, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A04-1601-CR-131
              v.                                               Appeal from the
                                                               Elkhart Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Teresa L. Cataldo, Judge
                                                               Trial Court Cause No.
                                                               20D03-0801-FC-8



      Kirsch, Judge.


[1]   Jesse E. Kaufman (“Kaufman”) appeals the trial court’s order revoking his

      probation and imposing his previously-suspended sentence. He raises the


      Court of Appeals of Indiana | Memorandum Decision 20A04-1601-CR-131 | September 20, 2016    Page 1 of 8
      following issue, which we restate as: whether the trial court erred in denying

      his motion to dismiss the State’s petition to revoke his probation and in

      revoking his probation.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 29, 2008, Kaufman pleaded guilty to two counts of sexual misconduct

      with a minor, each as a Class C felony. On July 18, 2008, the trial court

      sentenced him to eight years on each count, with the sentences to run

      consecutively, and the eight-year sentence on Count II to be suspended to

      probation. The trial court informed Kaufman of the various terms and

      conditions of his probation, including that he not have contact with any person

      under the age of eighteen, that he not leave Elkhart County without approval of

      his probation officer, and that he enroll in and successfully complete sex

      offender therapy.


[4]   In early July 2011, the Indiana Department of Correction put Kaufman on

      parole. On July 5, 2011, Kaufman met with his probation officer, Melanie

      Godden (“Godden”), who reviewed Kaufman’s terms of probation with him.

      One of the terms stated, “You must never be alone with or have contact with

      any person under the age of 18. Contact includes face-to-face, telephonic,

      written, electronic, or any indirect contact via third parties. . . .” Appellant’s

      App. at 82. It was also reiterated that Kaufman was ordered to attend and

      successfully complete a sex offender treatment program and not to leave

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      Elkhart County without approval from his probation officer. After the terms

      were explained to him, Kaufman signed them.


[5]   On February 4, 2013, Kaufman requested that the trial court modify the terms

      of his probation because, since his release from incarceration, he had married

      and had a baby girl, and he sought to live with them. On the same date, the

      probation department asked the trial court to allow Kaufman to leave Elkhart

      County so that he could attend a therapy program. The trial court granted the

      probation department’s request, but set Kaufman’s motion for a hearing, which

      was continued several times. On July 16, 2013, the probation department filed

      a notice of probation violation due to Kaufman allegedly attempting to record a

      sex offender group counseling session, which was in violation of the program’s

      rules. He was later found to have violated the terms of his probation, and as a

      sanction, the trial court ordered that Kaufman continue on probation as

      previously ordered.


[6]   On January 29, 2015, the probation department filed another petition alleging

      that Kaufman had violated the terms of his probation. At a hearing in April

      2015, Kaufman orally moved to dismiss the petition to revoke his probation.

      The trial court directed Kaufman to file a written motion to dismiss. On May

      21, 2015, Kaufman filed a motion, alleging that: (1) the probation department

      lacked jurisdiction over him because he was under exclusive jurisdiction of the

      parole board until his eight-year executed sentence was completed; and (2) he

      would be subjected to double jeopardy by being charged with the same

      allegation by the parole board and the probation department. Appellant’s App. at

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      177-79. As support for his contention of lack of jurisdiction, Kaufman attached

      a letter from Godden in October 2014, informing him that he would not resume

      reporting probation until after he had completed his parole term and did not

      have to have appointments with Godden until he was released from parole. Id.

      at 181. Kaufman’s motion to dismiss the petition to revoke his probation was

      denied by the trial court.


[7]   An evidentiary hearing was held on the petition to revoke Kaufman’s

      probation. During the hearing, evidence was presented that the police had been

      notified that Kaufman had been harassing a seventeen-year-old girl by coming

      to the store where she worked. He had initiated a conversation with her and

      exchanged telephone numbers with her. Through several telephone calls and

      messages, Kaufman made sexual advances to the girl, and even when the girl

      distanced herself from him, he continued to visit the store where she worked.

      The trial court found that Kaufman had violated the terms of his probation and

      revoked the balance of his suspended sentence. Kaufman now appeals.


                                     Discussion and Decision
[8]   Probation is a matter of grace left to a trial court’s discretion, not a right to

      which a criminal defendant is entitled. McCauley v. State, 22 N.E.3d 743, 746

      (Ind. Ct. App. 2014), trans. denied. “Once a court has exercised its grace by

      ordering probation rather than incarceration, the judge has considerable leeway

      in deciding how to proceed.” Id. at 746-47 (citing Prewitt v. State, 878 N.E.2d

      184, 188 (Ind. 2007)). It is therefore within the discretion of the trial court to


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       determine probation conditions and to revoke probation if the conditions are

       violated. Id. at 747. Accordingly, a trial court’s determinations on probation

       violations and sanctions are subject to review for abuse of discretion. Heaton v.

       State, 984 N.E.2d 614, 616 (Ind. 2013). We also review a trial court’s denial of

       a motion to dismiss for an abuse of discretion. Lebo v. State, 977 N.E.2d 1031,

       1035 (Ind. Ct. App. 2012). An abuse of discretion occurs where the decision is

       clearly against the logic and effects of the facts and circumstances before the

       court or when the trial court misinterprets the law. Heaton, 984 N.E.2d at 616.


[9]    Kaufman argues that the trial court erred in denying his motion to dismiss the

       petition to revoke his probation and in revoking his probation. He asserts that

       he had a due process right to be notified that his probation could be revoked for

       a violation of the conditions of his probation during his second release on

       parole. Kaufman contends that he received mixed messages about whether his

       probation could be revoked during this time and at the time he had contact with

       the seventeen-year-old girl, and thus, he did not have proper notice of his

       probation status, which was a violation of his due process rights. Due to this

       lack of notice, Kaufman claims that it was fundamental error to both deny his

       motion to dismiss and to revoke his probation.


[10]   In the present case, Kaufman filed his motion to dismiss, alleging that the

       petition to revoke his probation should be dismissed because the probation

       department lacked jurisdiction over him as he was under exclusive jurisdiction

       of the parole board until his eight-year executed sentence was completed and he

       would be subjected to double jeopardy by being charged with the same

       Court of Appeals of Indiana | Memorandum Decision 20A04-1601-CR-131 | September 20, 2016   Page 5 of 8
       allegation by the parole board and the probation department. Appellant’s App. at

       177-79. However, he did not raise the argument that his due process rights

       were violated because he lacked notice that he was under a probationary period

       when he committed his violations in 2015; he raises this issue for the first time

       on appeal before this court. A defendant is limited to the grounds advanced at

       trial and may not raise a new ground for objection for the first time on appeal.

       King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App. 2003) (citing Jackson v. State, 712

       N.E.2d 986, 988 (Ind. 1999)), trans. denied, cert. denied, 543 U.S. 817 (2004).

       Kaufman attempts to avoid waiver by claiming that the trial court committed

       fundamental error. The fundamental error doctrine is an exception to the

       general rule that the failure to object at trial constitutes a procedural default

       precluding consideration of an issue on appeal. Jewell v. State, 887 N.E.2d 939,

       940 n.1 (Ind. 2008). The fundamental error exception to the waiver rule is an

       extremely narrow one. Munford v. State, 923 N.E.2d 11, 13 (Ind. Ct. App.

       2010). It “applies ‘only when the record reveals a clearly blatant violation of

       basic and elementary principles, where the harm or potential for harm cannot

       be denied, and which violation is so prejudicial to the rights of the defendant as

       to make a fair trial impossible.’” Hollingsworth v. State, 987 N.E.2d 1096, 1098

       (Ind. Ct. App. 2013) (quoting Jewell, 887 N.E.2d at 942), trans. denied.


[11]   Kaufman contends that the letter he received in October 2014 from Godden,

       informing him that he would not resume reporting probation until after he had

       completed his parole term and was not required to have appointments with

       Godden until he was released from parole, led him to believe that he would not


       Court of Appeals of Indiana | Memorandum Decision 20A04-1601-CR-131 | September 20, 2016   Page 6 of 8
       be subject to probation until 2016 when his parole term ended. Therefore,

       because he was misled by a lack of notice, the trial court committed

       fundamental error when it denied his motion to dismiss and revoked his

       probation. We disagree.


[12]   On July 18, 2008, when Kaufman was sentenced for his original crimes, he was

       informed by the trial court of the various terms and conditions of his probation,

       including that he not have contact with any person under the age of eighteen.

       On July 5, 2011, Kaufman met with Godden, who reviewed Kaufman’s terms

       of probation with him, one of which stated that he was never to be alone with

       or have contact with a person under the age of eighteen. In February 2013,

       Kaufman filed a request that the trial court modify the terms of his probation so

       that he could live with his wife and newborn daughter, and on the same date,

       the probation department asked the trial court to allow Kaufman to leave

       Elkhart County so that he could attend a therapy program. On July 16, 2013,

       the probation department filed a notice of probation violation due to Kaufman

       allegedly attempting to record a sex offender group counseling session, which

       was in violation of the program’s rules. He was later found to have violated the

       terms of his probation, and as a sanction, the trial court ordered that Kaufman

       continue on probation as previously ordered. On January 29, 2015, the

       probation department filed another petition alleging that Kaufman had violated

       the terms of his probation for the instant actions of having contact with a person

       under eighteen years of age.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1601-CR-131 | September 20, 2016   Page 7 of 8
[13]   From the time of his sentencing, Kaufman was made aware of the terms of his

       probation and that he was subject to these terms, and the subsequent actions of

       requesting modifications of the probationary terms and being found to have

       violated probation, further demonstrate his awareness of being subject to the

       terms of probation thereafter. It is “well-established precedent that a

       defendant’s probationary period begins immediately after sentencing.” Baker v.

       State, 894 N.E.2d 594, 597-98 (Ind. Ct. App. 2008) (discussing a long line of

       cases holding that the probationary period begins immediately after sentencing).

       “Probation may be revoked at any time for a violation of its terms,” which

       “includes revocation prior to the start of probation.” Champlain v. State, 717

       N.E.2d 567, 571 (Ind. 1999). We conclude that Kaufman has not shown that

       the trial court committed fundamental error in denying his motion to dismiss

       the petition to revoke his probation. As Kaufman does not argue that the

       evidence supporting the revocation of his probation was lacking, we also find

       that the trial court did not err in revoking his probation.


[14]   Affirmed.


       May, J., and Crone, J., concur.




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