MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                           Apr 29 2016, 8:44 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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason L. Holland,                                        April 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1512-CR-2126
        v.                                               Appeal from the Vigo County
                                                         Superior Court 1
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1403-FC-630
                                                         84D01-1403-FD-840



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016    Page 1 of 6
                                             Case Summary
[1]   Jason L. Holland (“Holland”) was found to have violated the terms of his direct

      placement in community corrections and his probation when he used illicit

      drugs and alcohol while on home detention. As a sanction, the trial court

      ordered Holland to serve the balance of his community corrections placement

      in the Indiana Department of Correction (“DOC”), but did not disturb its

      original probation order. On appeal, Holland challenges the trial court’s

      finding that he violated the terms of his probation. We affirm.



                                   Facts and Procedural History
[2]   On March 11, 2014, under cause number 84D01-1403-FC-630 (“FC-630”),

      Holland was charged with Operating a Motor Vehicle while Privileges are

      Forfeited for Life, a Class C felony,1 and Possession of Marijuana, as a Class A

      misdemeanor.2 On April 4, 2014, under cause number 84D01-1403-FD-840

      (“FD-840”), Holland was charged with Receiving Stolen Auto Parts, as a Class

      D felony.3 On July 29, 2014, Holland agreed to plead guilty to the charges in

      both FC-630 and FD-840. On September 8, 2014, the trial court accepted

      Holland’s plea agreement, entered judgments of conviction, and sentenced him




      1
       Ind. Code § 9-30-10-17. This offense is now a Level 5 felony. We refer to the statute in effect at the time
      Holland committed his offense.
      2
          I.C. § 35-48-4-11(1).
      3
          I.C. § 35-43-4-2.5(c).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016               Page 2 of 6
      to an aggregate sentence of six years in the DOC, with two years executed on

      home detention as a direct placement in community corrections and four years

      suspended to formal probation.


[3]   Holland began his home detention monitoring on September 3, 2015.4 On

      October 16, 2015, the State filed a “Petition to Revoke Direct Placement in the

      Home Detention Program and/or to Revoke Probation,” in which it alleged

      that Holland had violated his community corrections placement by testing

      positive for amphetamine, methamphetamine, THC, and alcohol on September

      4, 2015, and by testing positive for alcohol on September 8, September 10,

      October 2, and October 14, 2015, all in violation of Home Detention Rule 4.


[4]   On November 9, 2015, the trial court held a hearing on the petition, at the

      conclusion of which it found Holland violated his community corrections

      placement and his probation. Following a sanctions hearing, the court ordered

      Holland to serve the balance of his two-year community corrections placement

      in the DOC, followed by four years of formal probation. Holland now appeals.



                                 Discussion and Decision
[5]   Holland does not dispute that he violated the terms of his community

      corrections placement when he violated the home detention rules. Rather,




      4
       Holland did not begin his community corrections placement for nearly a year, apparently because he was
      arrested and incarcerated in Missouri for several months after he was sentenced in this case.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016          Page 3 of 6
      Holland contends there was insufficient evidence of the terms of his probation

      to support the court’s finding that he violated those terms.


[6]   Probation is not a right to which a criminal defendant is entitled, but a matter of

      grace left to a trial court’s discretion. McCauley v. State, 22 N.E.3d 743, 746

      (Ind. Ct. App. 2014), trans. denied. It is within the court’s discretion to

      determine probation conditions and to revoke probation if the conditions are

      violated. Id. at 747. Accordingly, a trial court’s probation decision is subject to

      review for abuse of discretion. Id. An abuse of discretion occurs when the

      decision is clearly against the logic and effects of the facts and circumstances

      before the court. Id.


              Because a probation hearing is civil in nature, the State must
              prove the alleged probation violation by a preponderance of the
              evidence. In reviewing a claim of insufficient evidence, we
              neither reweigh the evidence nor judge the credibility of the
              witnesses. Instead, we consider only the evidence most favorable
              to the trial court’s decision to revoke probation. We will affirm
              when there is substantial evidence of probative value to support
              the court’s conclusion that a probationer has violated any
              condition of probation.


      Johnson v. State, 692 N.E.2d 485, 486 (Ind. Ct. App. 1998) (citations omitted).




      Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016   Page 4 of 6
[7]   At the revocation hearing, the State presented evidence that Holland tested

      positive for illicit drugs and alcohol during the probationary period,5 but did not

      introduce evidence of the probation terms. However, Holland did not object on

      the grounds that refraining from drug and alcohol use was not a condition of his

      probation. The issue is thus waived. See Johnson, 692 N.E.2d at 486-87

      (holding that probationer waived appellate argument that conditions of

      probation were not proven where he failed to object on these grounds at the

      revocation hearing); Bryce v. State, 545 N.E.2d 1094, 1098 (Ind. Ct. App. 1989)

      (same), trans. denied.


[8]   Moreover, even if Holland’s issue was not waived, it would have been within

      the court’s authority to revoke his probation solely because he violated the

      terms of his community corrections placement. See I.C. § 35-38-2.6-5(4) (2015)

      (providing that if a person directly placed in a community corrections program

      violates the placement terms, the community corrections director may request

      that the court revoke the placement and commit the person to the county jail or

      department of correction for the remainder of the person’s sentence); McCauley,

      22 N.E.3d at 747 (holding that prior version of Section 35-38-2.6-56 provides the




      5
        Although Holland was on home detention at the time, “the probationary period begins immediately after
      sentencing and ends at the conclusion of the probationary phases of the defendant’s sentence.” Crump v.
      State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000), trans. denied. Probation can be violated prospectively. Id.
      6
        The prior version of the statute similarly provided: “If a person who is placed [in community corrections]
      under this chapter violates the terms of the placement, the court may, after a hearing, . . . [r]evoke the
      placement and commit the person to the department of correction for the remainder of the person’s
      sentence.” I.C. § 35-38-2.6-5(3) (1991).

      Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016              Page 5 of 6
       court with “authority to order [a person] incarcerated for the remainder of his

       sentence, regardless of the term of probation included in the original sentencing

       order, because he violated the terms of his home detention”).


[9]    Finally, although Holland asks this Court to reverse the revocation of his

       probation, it does not appear that Holland’s probation was actually revoked.

       After finding Holland violated his placement and probation terms, the trial

       court ordered Holland to serve the balance of his two-year community

       corrections placement in the DOC, followed by four years of formal probation.

       The court’s sanction thus modified his placement, but did not alter the

       probationary period to which he was originally sentenced. Any alleged error in

       the court’s finding that Holland violated his probation was therefore harmless

       and not grounds for granting reversal on appeal. See Ind. Appellate Rule 66(A).


[10]   The trial court did not abuse its discretion when it found that Holland violated

       the terms of his probation.


[11]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1512-CR-2126 | April 29, 2016   Page 6 of 6
