MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 29 2017, 9:13 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
Joel C. Wieneke                                         Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General
Brooklyn, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Louis H. Howard, Jr.,                                   March 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A02-1610-CR-2380
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff                                      Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1501-F6-12



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017     Page 1 of 5
                                          Case Summary
[1]   Louis H. Howard, Jr., appeals the revocation of his home detention, arguing

      that the State did not give him sufficient notice that it was seeking to revoke his

      direct placement on home detention. Finding that Howard received sufficient

      notice, we affirm.



                            Facts and Procedural History
[2]   In July 2015, Howard pled guilty to Level 6 felony theft and Level 6 felony

      counterfeiting. The following month, the trial court sentenced Howard to

      consecutive terms of one-and-a-half years for theft and two-and-a-half years

      (with two years suspended) for counterfeiting. As an alternative to

      commitment to the Indiana Department of Correction, the trial court directly

      placed Howard on home detention through Wells County Community

      Corrections. Appellant’s App. Vol. II p. 53 (“In lieu of incarceration, the

      Defendant may serve the executed portion of the sentence on home detention

      through Wells County Community Corrections . . . .”); see Ind. Code § 35-38-

      2.6-3(a) (“The court may, at the time of sentencing, suspend the sentence and

      order a person to be placed in a community corrections program as an

      alternative to commitment to the department of correction.”). The court also

      ordered Howard to serve two years of probation following completion of home

      detention. Appellant’s App. Vol. II p. 53; Ind. Code § 35-38-2.6-7 (“When a

      person completes a placement program under this chapter, the court shall place



      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017   Page 2 of 5
      the person on probation.”). The trial court ordered Howard’s sentence in this

      case to run consecutive to his sentence in another cause number.

[3]   After completing his sentence in the other cause number, Howard started

      serving his home detention in this case on September 17, 2015. Approximately

      two months later, on November 16, 2015, the State filed a Verified Petition for

      Revocation of Suspended Sentence and Probation, alleging that Howard

      committed a criminal offense (domestic battery under Cause Number 90D01-

      1511-CM-389). Approximately nine months after the first petition was filed, on

      August 22, 2016, the State filed a Second Verified Petition for Revocation of

      Suspended Sentence and Probation, alleging that Howard committed more

      criminal offenses (domestic battery, intimidation, and battery against a public-

      safety official under Cause Number 90D01-1608-F6-87). The second petition

      was then amended on September 7 to allege that Howard committed yet

      another criminal offense (battery resulting in bodily injury to a public-safety

      officer under Cause Number 90C01-1609-F5-34).


[4]   The trial court held a fact-finding hearing on both petitions—the November 16,

      2015 first petition and the September 7, 2016 amended second petition. The

      court found that the State did not meet its burden with respect to the first

      petition but that it did meet its burden with respect to the amended second

      petition. Appellant’s App. Vol. II p. 116. Accordingly, the court ordered

      Howard to serve the balance of his sentence in the DOC. The court calculated

      the balance as follows: 448 days of home detention remaining on Howard’s

      theft sentence, 182 days of home detention on his counterfeiting sentence, and

      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017   Page 3 of 5
      730 days suspended on his counterfeiting sentence, with credit “for 54 actual

      days spent in confinement awaiting disposition in this cause.” Id.


[5]   Howard now appeals.



                                   Discussion and Decision
[6]   Howard raises one issue on appeal. He concedes that the State gave him

      sufficient notice that it was seeking to revoke his probation; however, he argues

      that the State did not give him sufficient notice it was also seeking to revoke his

      direct placement on home detention.

[7]   In support of his argument, Howard cites Christie v. State, 939 N.E.2d 691 (Ind.

      Ct. App. 2011). In that case, the trial court directly placed the defendant in a

      community-corrections program to be followed by a term of probation. We

      held that a petition styled “Verified Petition to Revoke Suspended Sentence”

      was sufficient to put Christie on notice that the State was seeking to revoke both

      his community-corrections placement and his probation. We relied on the fact

      that Indiana Code sections 35-38-2.6-3 and -4 allow a trial court, at the time of

      sentencing, to “suspend” a defendant’s sentence and directly place them in a

      community-corrections program in lieu of commitment to the DOC.1 Id. at



      1
        Our Supreme Court has explained that “suspend” as used in these statutes—as opposed to a
      traditional “suspended” sentence subject to the terms of probation—means only that the requirement
      that the offender actually serve time incarcerated in the DOC is suspended during the community-
      corrections placement period. Purcell v. State, 721 N.E.2d 220, 223 (Ind. 1999), reh’g denied; see also
      Shaffer v. State, 755 N.E.2d 1193, 1195 (Ind. Ct. App. 2001) (Vaidik, J., concurring in result).



      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017                Page 4 of 5
      694. “Thus, revocation of Christie’s suspended sentence necessarily entailed

      revocation of his community corrections placement, and the State’s explicit

      notice of the former implied notice of the latter.” Id.


[8]   Howard argues that unlike the defendant in Christie, he was not given sufficient

      notice because the State’s petition “did not ask for revocation of the suspended

      sentence in general.” Appellant’s Br. p. 8. We disagree. If anything, the

      State’s petition in this case—which was titled Verified Petition for Revocation

      of Suspended Sentence and Probation and which asked the court “to revoke the

      probation and suspended sentence” of Howard, see Appellant’s App. Vol. II p.

      104 (emphasis added)—made it clearer that the State was seeking to revoke not

      only Howard’s probation but also his community-corrections placement.

      Although the State’s petition could have been more carefully worded to

      distinguish between the revocation of Howard’s community-corrections

      placement and the revocation of his probation, see, e.g., McCauley v. State, 22

      N.E.3d 743 (Ind. Ct. App. 2014) (petition styled “Petition to Revoke Direct

      Placement in the Home Detention Program and/or to Revoke Probation”),

      trans. denied, it was more than sufficient under Christie. Because Howard had

      sufficient notice that the State was seeking to revoke his direct placement on

      home detention, we affirm the trial court.


[9]   Affirmed.

      Bradford, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017   Page 5 of 5
