      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                 Jul 10 2020, 8:53 am

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


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                        Curtis T. Hill, Jr.
      Peru, Indiana                                             Attorney General of Indiana
                                                                Benjamin J. Shoptaw
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jason R. Hagerty,                                         July 10, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A-CR-347
              v.                                                Appeal from the Howard Superior
                                                                Court
      State of Indiana,                                         The Honorable William C.
      Appellee-Plaintiff.                                       Menges, Jr., Judge
                                                                Trial Court Cause No.
                                                                34D01-1310-FA-862



      Mathias, Judge.


[1]   Jason R. Hagerty appeals from an order of the Howard Superior Court

      directing him to serve the balance of his previously suspended sentence in the


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020                      Page 1 of 8
      Department of Correction (“DOC”). Hagerty contends that the trial court’s

      order and its determination of his jail credit time constitute an abuse of

      discretion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In October 2013, the State charged Hagerty with Class A felony dealing in

      methamphetamine, Class C felony possession of a controlled substance, Class

      D felony possession of methamphetamine, and Class D felony possession of

      chemical reagents or precursors with intent to manufacture a controlled

      substance. Pursuant to a plea agreement, Hagerty pleaded guilty to Class B

      felony dealing in methamphetamine. He was sentenced on March 26, 2014, to

      ten years in the DOC, with six years executed and four years suspended to

      probation.


[4]   In April 2015, Hagerty requested that the trial court modify his sentence, and it

      did so on June 16, 2015. The terms of the modified sentence suspended the

      balance of Hagerty’s six-year executed sentence to supervised probation. The

      modified sentence also permitted Hagerty’s release from the DOC to a

      community transition program. Following Hagerty’s successful completion of

      the program, the trial court ordered, on August 22, 2016, that three years of the

      balance of Hagerty’s suspended sentence be served on supervised probation.


[5]   The State filed a petition to revoke Hagerty’s suspended sentence on September

      24, 2018, alleging violation of the terms of his probation. On May 14, 2019,
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020   Page 2 of 8
      Hagerty admitted to the alleged violation and was sentenced to serve the

      balance of his previously suspended sentence—2,102 days—executed in a

      community corrections work release program. On September 23, 2019, the

      State filed a notice of Hagerty’s non-compliance with the terms of his work

      release placement and a petition to revoke his suspended sentence. After a fact-

      finding hearing, the trial court ordered that Hagerty serve 120 days of the

      previously suspended sentence in jail; following the executed jail time, Hagerty

      was ordered to serve ninety days at an in-patient treatment center; and

      following treatment at the center, the trial court ordered Hagerty back to the

      work release placement for the balance of his sentence.


[6]   Hagerty was unsuccessfully discharged from the in-patient treatment center

      prior to the ninety-day period, and on December 31, 2019, the State filed a

      second notice of non-compliance with the terms of his community corrections

      placement. Hagerty admitted to the alleged violation on January 28, 2020, and

      was sentenced to serve the balance of his suspended sentence—1,504 days—in

      the DOC. This appeal followed.


                                     Discussion and Decision
[7]   Hagerty contends that the trial court abused its discretion in ordering him to

      serve the balance of his previously modified and suspended sentence in the

      DOC. The State counters that the trial court’s order was not an abuse of

      discretion because it constitutes an appropriate sanction for Hagerty’s most

      recent violation of the terms of his community corrections placement.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020   Page 3 of 8
[8]    A trial court’s sentencing decision for a violation of probation is reviewed for an

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

       of discretion occurs where the trial court’s decision is “clearly against the logic

       and effect of the facts and circumstances.” Id. An abuse of discretion may also

       occur where the trial court misinterprets the law. Heaton v. State, 984 N.E.2d

       614, 616 (Ind. 2013). The violation of a single condition of a community

       corrections placement is sufficient to support revocation. Figures v. State, 920

       N.E.2d 267, 273 (Ind. Ct. App. 2010). Where a trial court determines, based on

       a preponderance of the evidence, that a community corrections violation has

       occurred, it may revoke a defendant’s placement in the program and order that

       all or part of the balance of the defendant’s previously suspended sentence be

       executed in the DOC. Christie v. State, 939 N.E.2d 691, 694 (Ind. Ct. App. 2011)

       (citing Ind. Code § 35-38-2.6-5); I.C. § 35-38-2-3(h)(3).


[9]    Hagerty’s argument relies on his interpretation of the effect of the trial court’s

       2015 and 2016 modifications to his sentence. Hagerty contends that, as a result

       of the modifications, the term of his suspended sentence was shortened to three

       years. Appellant’s Br. at 9. According to Hagerty, the trial court’s 2020

       revocation of his probation and its imposition of the balance of his sentence

       executed in the DOC is an abuse of discretion that warrants reversal. For the

       following reasons, we disagree.


[10]   In 2014, Hagerty received a ten-year sentence; six of those years were ordered

       executed, and four were suspended to probation. Hagerty successfully



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020   Page 4 of 8
       petitioned for a modification of his sentence in 2015. The trial court issued the

       following modification on June 16, 2015:


               The Defendant’s sentence shall be modified to provide for release
               from the [DOC] on December 12, 2015. The Defendant is
               approved for the Community Transition Program effective June
               16, 2015, under Electronic Monitoring, Day Reporting and/or
               Reentry Court Supervision through Howard County Community
               Corrections.


               The Defendant’s sentence is further modified to reflect that the balance of
               the Defendant’s executed sentence is hereby suspended, to be served on
               Supervised Probation.


       Appellant’s App. p. 71 (emphasis added).


[11]   The effect of the emphasized portion of the above-quoted order was not to

       abbreviate Hagerty’s ten-year sentence; rather, the order modified the sentence

       by suspending the balance of the six-year executed portion to supervised

       probation. The previously suspended four-year portion was unaffected, the

       result being that, as of June 16, 2015, Hagerty faced a nine-year suspended

       sentence, five years of which were to be served on supervised probation. We

       observe here the accepted relationship between the imposition of concurrent

       probation and suspended sentences. As our supreme court has explained, “the

       two work in concert.” Jennings v. State, 982 N.E.2d 1003, 1008 (Ind. 2013).

       According to Black’s Law Dictionary, probation is a “court-imposed criminal

       sentence that, subject to stated conditions, releases a convicted person into the

       community instead of sending the criminal to jail or prison.” Id. (9th ed. 2009).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020          Page 5 of 8
       Whereas a suspended sentence is a “sentence postponed so that the convicted

       criminal is not required to serve time unless he . . . commits another crime or

       violates some other court-imposed condition. A suspended sentence, in effect, is

       a form of probation.” Id. Probation can be thought of a “test” to be passed in

       order to avoid serving the balance of a suspended sentence.


[12]   After the modification of his sentence, Hagerty was released from the DOC,

       enrolled in the court’s reentry program, and determined to have successfully

       completed the program on August 22, 2016. See Appellant’s App. pp. 73–77.

       The trial court’s determination on that date included a second modification to

       Hagerty’s sentence:


               The Defendant, having successfully completed the Howard
               Superior Court I Re-Entry Court Program, the Court now
               modifies the Defendant’s sentence as follows:


               The Defendant shall serve three (3) years of the suspended
               sentence on Supervised Probation.


       Appellant’s App. p. 77.


[13]   As explained, supra, as of June 2015, the entirety of the balance of Hagerty’s

       ten-year sentence was suspended to probation. Thus, the effect of the trial

       court’s second modification to his sentence, in August 2016, was to specify that

       just three of those years would be served in supervised probation; the total




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020   Page 6 of 8
       length of the suspended sentence was unaffected.1 We agree with the State that

       Hagerty’s “exposure was still any remaining time, whether it had been

       originally ordered executed or suspended, from his sentence of [ten years].”

       Appellee’s Br. at 9.


[14]   Therefore, the trial court did not abuse its discretion when it revoked Hagerty’s

       community corrections placement in its January 28, 2020, order, following

       Hagerty’s admission to violating the terms of his probation. Ordering that

       Hagerty serve the balance of his previously suspended sentence in the DOC is

       an appropriate sanction for Hagerty’s violation of the terms of his community

       corrections placement. See, e.g., Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App.

       2006) (trial court did not abuse its discretion in ordering that defendant serve his

       full suspended sentence in the DOC following probation revocation).


[15]   Hagerty’s second argument is that the trial court abused its discretion in

       calculating applicable jail credit time in its order revoking his placement in

       community corrections. Specifically, the trial court’s February 6, 2020,

       sentencing order found that Hagerty “has no jail time credit as of [January 28,

       2020] served while awaiting disposition in this matter.” Appellant’s App. p.




       1
         We note, though, that even the State appears to have misstated the effect of the trial court’s modifications to
       Hagerty’s sentence at least once. In its petition alleging Hagerty’s violation of the terms of his probation, filed
       in late 2018, the State wrote, “On August 22, 2016 . . . [t]he Defendant’s sentence was modified to 3 years on
       Supervised Probation.” Appellant’s App. p. 80. Based on the imprecision of this statement, Hagerty’s own
       apparent misunderstanding of the balance of his sentence after its modification is not impossible to fathom.
       We urge trial courts to take appropriate measures to ensure the veracity of a finding in a sentencing order that
       a defendant understands his “possible sentence” upon entering a plea.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020                           Page 7 of 8
       122. Hagerty was unsuccessfully discharged from his placement at an in-patient

       treatment center on December 30, 2019, and returned to the Howard County

       jail that same day. Id. at 118. He was sentenced to 1,504 days of incarceration

       after a hearing on January 28, 2020. At that hearing, the trial court noted that

       the balance of Hagerty’s suspended sentence had been 1,954 days at the time of

       his most recent resentencing, in May 2019. Tr. p. 14. The trial court stated that,

       in reaching its 1,504-day sentence, it was crediting the time since May 2019 that

       Hagerty had spent at in-patient treatment, on work release, and in jail. See Tr. p.

       14. Thus, the trial court did not abuse its discretion in finding in its written

       order that Hagerty “has no jail time credit,” because the trial court had already

       factored Hagerty’s applicable credit time into the 1,504-day sentence it

       imposed.


                                                 Conclusion
[16]   For the foregoing reasons, we hold that the trial court did not abuse its

       discretion in ordering that Hagerty serve the balance of his previously

       suspended sentence in the DOC, nor in calculating that balance to be 1,504

       days.


[17]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-347 | July 10, 2020   Page 8 of 8
