MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Aug 22 2016, 8:32 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jacob P. Wahl                                            Gregory F. Zoeller
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Jenkins,                                           August 22, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         82A01-1512-CR-2152
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-0101-CF-47



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016         Page 1 of 11
                                             Case Summary
[1]   Keith Jenkins appeals the revocation of his probation and the sentence imposed

      upon that revocation. We affirm.


                                                    Issues
[2]   The issues before us are:


              I.      whether there is sufficient admissible evidence to support
                      the revocation of Jenkins’s probation; and


              II.     whether the trial court abused its discretion in ordering
                      Jenkins to serve the remainder of his sentence in the
                      Department of Correction (“DOC”) and in calculating his
                      credit time.


                                                     Facts
[3]   In 2001, Jenkins was convicted of two counts of Class A felony dealing in

      cocaine. The trial court sentenced Jenkins to concurrent terms of forty-five

      years executed and five years on probation. In September 2012, Jenkins filed a

      petition for modification of his sentence. The petition was based upon

      Jenkins’s documented serious health problems. Specifically, Jenkins suffers

      from heart failure, requires extensive treatment, and is a heart transplant

      candidate. On April 26, 2013, the trial court modified Jenkins’s sentence to

      concurrent terms of twenty-four years, seven months, and twelve days. With

      time served, this resulted in Jenkins’s release from the DOC on May 3, 2013.

      The modification was conditioned upon Jenkins remaining on probation for


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 2 of 11
      five years, as provided in his original sentence. One of the terms of Jenkins’s

      probation required him to obey all state laws.


[4]   After release from the DOC, Jenkins moved to St. Louis, and his probation was

      monitored by the State of Missouri. Jenkins received permission from his

      probation officer to travel to Evansville for medical appointments for

      specialized treatment of his heart condition. On December 11, 2014, Jenkins

      drove to Evansville for one such appointment. After arriving in Evansville and

      before going to his appointment, Jenkins went to the home of Joel Kennedy.

      Kennedy is the cousin of an acquaintance of Jenkins’s, Larry Weatherspoon.

      On that date, Kennedy’s home was under surveillance by Detective Tony

      Johnson of the Evansville Police Department as part of a drug task force

      investigation. In fact, police had already obtained a search warrant for the

      home based upon suspected drug dealing occurring there. Detective Johnson

      observed a man later identified as Jenkins enter the home carrying a dark duffel

      bag.


[5]   Approximately five minutes after Jenkins entered the home, Detective Johnson

      and a SWAT team executed the search warrant. Detective Johnson saw a

      duffel bag identical to the one Jenkins had brought into the home sitting on the

      floor. The bag contained several bricks of marijuana, weighing over ten pounds

      total, as well as baggies and digital scales. Evansville Police Detective Cliff

      Simpson also participated in the search of the residence. He knew Jenkins from

      prior investigations but did not expect him to be at Kennedy’s residence. The



      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 3 of 11
      drug task force’s investigation had been focused solely upon Kennedy and

      Weatherspoon.


[6]   The State charged Jenkins with Level 5 felony dealing in marijuana.

      Additionally, on January 5, 2015, the State filed a petition to revoke Jenkins’s

      probation. On January 23, 2015, the trial court placed Jenkins on home

      detention pending resolution of the petition to revoke; the order required

      Jenkins to live in Evansville but gave him permission to leave home for medical

      appointments.


[7]   Before there was a hearing on the probation revocation petition, there was a

      trial on the underlying criminal charge against Jenkins that resulted in a hung

      jury. A probation revocation hearing was held on October 30, 2015. Jenkins

      testified that he had gone to Kennedy’s house solely to rest and play video

      games before going to his medical appointment and denied any involvement in

      marijuana dealing. During rebuttal testimony, Detective Simpson mentioned

      collecting a wheeled suitcase from the residence’s attic that smelled of

      marijuana, in addition to the duffel bag. Apparently, the suitcase had not

      previously been mentioned in police reports or during Jenkins’s criminal trial.

      At the conclusion of this hearing the trial court took the matter under

      advisement.


[8]   On November 6, 2015, the trial court held a hearing and announced that it had

      found by a preponderance of the evidence that Jenkins had violated his

      probation. It revoked Jenkins’s probation and ordered him to serve five years in


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 4 of 11
      the DOC. It granted Jenkins credit for time served and good time credit for the

      period between December 11, 2014 and December 23, 2014,1 but did not grant

      Jenkins any credit time for his time on home detention since January 23, 2015.

      Jenkins’s attorney objected that “one of the witnesses at that case changed . . .

      well stated something new at the hearing that he never mentioned anywhere in

      his affidavits or at his testimony at the prior trial. Out of the blue new evidence

      came in.” Tr. p. 67. The trial court reaffirmed its ruling in light of this

      objection. The State thereafter orally moved to dismiss the underlying criminal

      case against Jenkins. Jenkins now appeals.


                                                       Analysis
                                         I. Sufficiency of the Evidence

[9]   Jenkins first contends there is insufficient admissible evidence to support the

      revocation of his probation. Probation is a matter of trial court grace, not a

      right to which a criminal defendant is entitled. Heaton v. State, 984 N.E.2d 614,

      616 (Ind. 2013). “It is within the discretion of the trial court to determine

      probation conditions and to revoke probation if the conditions are violated.”

      Id. We review a trial court’s revocation of probation and any sanctions

      imposed thereon for an abuse of discretion. Id. An abuse of discretion occurs if

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

      before the trial court, or if it has misinterpreted the law. Id. The first step in the




      1
       This appears to represent time that Jenkins spent in jail following his arrest for Level 5 felony dealing in
      marijuana.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016               Page 5 of 11
       probation revocation process is determining whether a violation of a condition

       of probation actually occurred. Id. The second step is determining the

       appropriate sanction for a violation. Id.


[10]   Tied into Jenkins’s sufficiency argument is his claim that the State improperly

       introduced evidence during the probation revocation hearing that had never

       been previously disclosed to Jenkins, either as part of the revocation

       proceedings or the underlying criminal proceedings. Jenkins contends that this

       violated his due process rights. The due process rights to which a probationer is

       entitled before revocation may occur are: “(a) written notice of the claimed

       violations of probation; (b) disclosure of the evidence against him; (c) an opportunity

       to be heard and present evidence; (d) the right to confront and cross-examine

       adverse witnesses; and (e) a neutral and detached hearing body.” Woods v.

       State, 892 N.E.2d 637, 640 (Ind. 2008) (emphasis added).


[11]   However, Jenkins did not contemporaneously object to any testimony or

       evidence during the revocation evidentiary hearing. The only objection to the

       evidence came at a hearing several days later, after the trial court had already

       announced its ruling. The failure to object to evidence introduced during a

       probation revocation hearing generally waives any claim of error. Marsh v.

       State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004). Additionally, Jenkins fails to

       specify in his brief precisely what evidence or testimony the State presented that

       had not previously been disclosed to him; Jenkins’s belated objection also did

       not specify the objectionable evidence. It would appear, as the State notes in its

       brief, that Jenkins is complaining about Detective Simpson’s testimony

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 6 of 11
       regarding the wheeled suitcase found in the attic of Kennedy’s home.

       However, by failing to specify what evidence he found objectionable or how it

       prejudiced him, Jenkins’s argument on this point lacks cogency and is further

       waived for this reason. See Howard v. State, 32 N.E.3d 1187, 1195 n.11 (Ind. Ct.

       App. 2015) (citing Ind. Appellate Rule 46(A)(8)(a)).


[12]   Waiver notwithstanding, and assuming that Jenkins’s argument is about the

       evidence regarding the wheeled suitcase, we see no basis for reversing the

       revocation of his probation. In order to revoke probation based on the

       commission of a new crime, the State does not have to show that the defendant

       was convicted of a new crime. Lampley v. State, 31 N.E.3d 1034, 1037 (Ind. Ct.

       App. 2015). It is sufficient if the State can demonstrate the commission of a

       new crime by a preponderance of the evidence. Id. In fact, a defendant’s

       probation may be revoked for commission of a new crime even if the defendant

       was acquitted of having committed the offense, because of the lower standard

       of proof for probation revocations. Thornton v. State, 792 N.E.2d 94, 99 (Ind.

       Ct. App. 2003).


[13]   If we disregard the evidence regarding the suitcase, there still is sufficient

       evidence to support revocation based on Jenkins’s commission of a new crime.

       Indeed, the evidence regarding the suitcase is irrelevant. The suitcase was not

       directly tied to Jenkins. Rather, the State’s evidence against Jenkins focused

       upon his carrying a duffel bag into Kennedy’s home, which was searched five

       minutes after Jenkins entered the home, and following a drug task force

       investigation into drug dealing there. The same duffel bag Detective Johnson

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 7 of 11
       saw Jenkins carry into the home was found to contain over ten pounds of

       marijuana and other indicia of dealing, i.e. digital scales and plastic baggies.

       Although officers had not expected to see Jenkins at the house, that does not

       negate their testimony that he was in fact there and carried the duffel bag into

       the house. And, even though the State failed to convince a jury that Jenkins

       was guilty beyond a reasonable doubt of dealing in marijuana, that did not

       preclude the trial court from finding by a preponderance of the evidence that he

       had done so. See id. There is sufficient evidence to support the revocation of

       Jenkins’s probation, even if we assume that the evidence regarding the wheeled

       suitcase was inadmissible.


                                                  II. Sentence

[14]   Jenkins also contends that, in light of his serious health concerns, the trial court

       abused its discretion in ordering him to serve the remaining five years of his

       sentence at the DOC. We will reverse the sanction imposed by a trial court

       following a determination that a probation violation occurred only if the

       defendant can establish that the decision is clearly against the logic and effect of

       the facts and circumstances before the trial court, or if it has misinterpreted the

       law. Heaton, 984 N.E.2d at 616. In light of the grace afforded in ordering

       probation in the first place, trial courts have considerable leeway in deciding

       how to proceed once a defendant has been found to have violated probation.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[15]   We are fully cognizant of Jenkins’s serious health concerns, which have been

       well-documented by the DOC. Indeed, before Jenkins’s sentence was modified
       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 8 of 11
       in 2013, the DOC had assisted Jenkins in preparing a petition for medical

       clemency; the fate of that petition is unclear, but in any event was essentially

       rendered moot when Jenkins obtained his release from the DOC in May 2013.

       However, that release represented a generous exercise of grace by the trial

       court. When the trial court modified Jenkins’s sentence, it drastically cut his

       original sentence of forty-five years executed to approximately twenty-four-and-

       a-half years executed, which amounted to time served when including good

       time credit. But Jenkins was not entirely free after the sentence modification, as

       the trial court retained five years of the sentence to be served on probation.


[16]   Despite this considerable exercise of grace in light of Jenkins’s health problems,

       Jenkins violated the trial court’s trust in him. An unfortunate but reasonable

       inference to be made from the evidence is that Jenkins utilized at least one

       medical appointment while on probation as a “cover” for drug dealing. Jenkins

       misleadingly states in his brief that his probation was revoked because he was

       present in a common nuisance for approximately five minutes. This overlooks

       the evidence most favorable to the judgment, which is that he carried a bag

       containing over ten pounds of marijuana, along with scales and baggies, into

       the home. Jenkins was not merely an innocent bystander when the SWAT

       team executed the search warrant for the home. In sum, the trial court did not

       abuse its discretion in ordering Jenkins to serve the entirety of his remaining

       five-year sentence in the DOC.


[17]   Jenkins also contends the trial court erred in not giving him any credit time,

       either time served or good time credit, for the time he spent on home detention

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016   Page 9 of 11
       as a condition of release while awaiting resolution of the probation revocation

       petition. Credit time is a matter of statutory right, and trial courts do not have

       discretion in awarding or denying such credit. Harding v. State, 27 N.E.3d 330,

       331–32 (Ind. Ct. App. 2015). Under Indiana Code Section 35-38-2.5-5(e) and

       (f), a person confined to home detention as a condition of probation earns both

       credit for time served and good time credit. Also, under Indiana Code Section

       35-38-2.6-6, a person confined to home detention as part of a sentence executed

       through a community corrections program earns both credit for time served and

       good time credit.


[18]   However, this court previously has held that a defendant placed on home

       detention as a condition of release pending resolution of a probation revocation

       petition was not entitled to any credit for time served upon revocation of

       probation and imposition of sentence, pursuant to Indiana Code Section 35-50-

       6-3. Senn v. State, 766 N.E.2d 1190, 1201-02 (Ind. Ct. App. 2002). That statute

       applies to offenses committed before July 1, 2014, and awards varying levels of

       “good time credit for each day the person is imprisoned for a crime or confined

       awaiting trial or sentencing,” depending on the defendant’s class assignment. 2

       As held in Senn and other cases, this statute does not allow an award of credit

       time for time spent on home detention as a condition of pretrial release because

       it is not “confinement.” Id. (citing Purcell v. State, 721 N.E.2d 220, 224 n.6 (Ind.




       2
        Additionally, prior to July 1, 2015, this statute only referred to an award of “credit time” for time spent in
       confinement prior to sentencing, not “good time credit.” See I.C. § 35-50-6-3 (2014).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016             Page 10 of 11
       1999)). Jenkins makes no argument that Senn was incorrectly decided with

       respect to credit for time spent on home detention as a condition of release

       pending resolution of a probation revocation petition. 3 We must conclude that

       the trial court properly denied Jenkins’s request for an award of credit time for

       the period he spent on home detention awaiting resolution of the probation

       revocation petition.4 See id.


                                                    Conclusion
[19]   There is sufficient admissible evidence to support the trial court’s revocation of

       Jenkins’s probation, and its order directing him to serve the remaining five

       years of his sentence in the DOC was not an abuse of discretion. Furthermore,

       the trial court did not err by failing to award Jenkins any credit for time served

       on home detention as a condition of his release pending resolution of the

       probation revocation petition. We affirm.


[20]   Affirmed.


       Bailey, J., and Riley, J., concur.




       3
         The statute governing probation revocation actions is silent regarding how or whether to award credit time
       for time a defendant spends in confinement or otherwise while awaiting final resolution of a revocation
       petition. See I.C. § 35-38-2-3.
       4
        The General Assembly recently enacted a provision allowing a defendant awaiting trial to earn “one (1) day
       of good time credit for every four (4) days the person serves on pretrial home detention awaiting trial.” I.C. §
       35-50-6-3.1(f). This provision, however, did not go into effect until July 1, 2016. See P.L. 44-2016, § 9.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-CR-2152 | August 22, 2016            Page 11 of 11
