MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 26 2018, 9:05 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
Ryan D. Bower                                           Curtis T. Hill, Jr.
Bower Law Office, LLC                                   Attorney General of Indiana
New Albany, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David D. Coleman,                                       December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1014
        v.                                              Appeal from the Orange Circuit
                                                        Court
State of Indiana,                                       The Honorable Steven L. Owen,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        59C01-1312-FA-870



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018             Page 1 of 6
                                       Statement of the Case
[1]   David D. Coleman appeals the trial court’s revocation of his probation.

      Coleman raises three issues for our review, which we restate as follows:


              1.      Whether the trial court erred when it did not dismiss the
                      State’s third notice of probation violation as untimely.


              2.      Whether the trial court’s written order revoking Coleman’s
                      probation failed to identify the basis for that revocation.


              3.      Whether Coleman’s argument that his sentence is
                      inappropriate under Indiana Appellate Rule 7(B) is
                      available in this appeal.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In December of 2013, the State charged Coleman with three counts of murder

      and three counts of Class C felony criminal recklessness. Coleman pleaded

      guilty to the three counts of Class C felony criminal recklessness, and, in

      exchange, the State dismissed the three counts of murder. The trial court

      sentenced Coleman to an aggregate term of eight years, which, aside from the

      time Coleman had already actually served, the court then suspended to formal

      probation.


[4]   Less than one year later, the State filed its first notice of probation violation

      based on Coleman having committed a new offense of battery. The first notice

      was later dismissed under a plea agreement in another cause number. Less than

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018   Page 2 of 6
      one year after that dismissal, the State filed a second notice of probation

      violation based on Coleman’s failure to report to probation. Coleman admitted

      to that violation, and the trial court revoked forty-two days of his previously

      suspended sentence.


[5]   The next month, the State filed its third notice of probation violation based on

      Coleman having committed the new offense of operating a vehicle as a habitual

      traffic violator. Coleman moved to dismiss the third notice “under the Doctrine

      of Res Judicata” because, according to Coleman, “the alleged offense . . . could

      have been alleged in the prior [second] petition.” Appellant’s App. Vol. 2 at 19-

      20. After a hearing on the motion to dismiss, the trial court denied Coleman’s

      motion to dismiss because the State had not discovered the violation at the time

      the court heard and decided the second notice.


[6]   At the ensuing fact-finding hearing on the third notice, Coleman renewed his

      objection to the notice on res judicata grounds, which the court overruled. The

      State then presented the testimony of Lawrence County Sheriff’s Department

      Officer Caleb Merriman, who testified that he had pulled over a vehicle being

      operated by Coleman in Lawrence County and that, at that time, Coleman was

      a habitual traffic violator. The court found that Coleman had violated the

      terms and conditions of his probation, and the court revoked his probation and

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

      Department of Correction. In its ensuing written order, the court stated, “the

      State has met [its] burden of proof by a Preponderance of Evidence that the



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018   Page 3 of 6
      defendant did violate the order of this Court as set forth in said Petition . . . .”

      Id. at 14. This appeal ensued.


                                     Discussion and Decision
                             Issue One: Timeliness of the Third Notice

[7]   On appeal, Coleman first asserts that the trial court erred when it revoked his

      probation because the State’s third notice was based on an act that preceded the

      State’s second notice. Insofar as Coleman appears to argue that the trial court

      erred when it did not apply the doctrine of res judicata, Coleman’s argument is

      not supported by cogent reasoning. See Ind. Appellate Rule 46(A)(8)(a).

      Coleman fails to discuss either the law of res judicata or the evidence most

      favorable to the trial court’s judgment. And, although not addressed by

      Coleman, the trial court’s denial of the motion to dismiss under the doctrine of

      res judicata is supported by the record. See Ind. Alcohol & Tobacco Comm’n v.

      Spirited Sales, LLC, 79 N.E.3d 371, 381 (Ind. 2017) (“Res judicata applies when

      a particular issue is adjudicated and then put in issue in a subsequent suit on a

      different cause of action between the same parties or their privies.”) (quotation

      marks omitted). Accordingly, we cannot say that the trial court erred when it

      denied Coleman’s motion to dismiss under the doctrine of res judicata.


[8]   That said, Coleman’s actual argument on this issue on appeal is not that the

      trial court misapplied the doctrine of res judicata but that the State’s third notice

      was untimely under Indiana Code Section 35-38-2-3. Coleman raises this

      statutory issue for the first time on appeal. “It is well-settled law in Indiana that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018   Page 4 of 6
       a defendant may not argue one ground for objection at trial and then raise new

       grounds on appeal.” Hitch v. State, 51 N.E.3d 216, 219 (Ind. 2016) (quotation

       marks omitted). Accordingly, Coleman has not preserved this issue for our

       review, and we do not consider it. See, e.g., Leonard v. State, 80 N.E.3d 878, 884

       n.4 (Ind. 2017).


                                         Issue Two: Written Order

[9]    Coleman next asserts that the trial court violated his due process rights when

       the court did not identify the basis for its revocation of his probation in its

       written judgment. We conclude that Coleman has not supported this apparent

       argument with cogent reasoning and, as such, this issue is waived. App. R.

       46(A)(8)(a). Coleman’s waiver notwithstanding, the court’s written order

       plainly states that the basis for the court’s revocation of his probation was that

       “the defendant did violate the order of this Court as set forth in said

       Petition . . . .” Appellant’s App. Vol. 2 at 14. We affirm the court’s judgment

       on this issue.


                                    Issue Three: Appellate Rule 7(B)

[10]   Last, Coleman asserts that the court’s imposition of the balance of his

       previously suspended sentence is inappropriate under Indiana Appellate Rule

       7(B). However, Rule 7(B) “is not the correct standard to apply when reviewing

       a sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184,

       188 (Ind. 2007). Accordingly, we cannot consider Coleman’s request to review

       and revise his sentence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018   Page 5 of 6
[11]   In sum, we affirm the trial court’s judgment.


[12]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018   Page 6 of 6
