MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Nov 20 2017, 9:22 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Corbin Callis,                                          November 20, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1706-CR-01450
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff                                      Menges, Judge
                                                        Trial Court Cause No.
                                                        34D01-1308-FB-00635



May, Judge.



Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017          Page 1 of 6
[1]   Corbin Callis appeals the number of days the trial court ordered him to serve

      after it revoked his probation. Callis argues the court abused its discretion by

      not considering mitigating circumstances and by denying credit for time spent

      in a drug court program. We affirm.



                                   Facts and Procedural History
[2]   On April 30, 2014, Callis pled guilty to Class B felony dealing in a schedule I

      controlled substance 1 and was referred to the Howard County Drug Court

      Program. Callis violated the terms of that program by absconding and was

      terminated from it. On July 1, 2015, the court entered Callis’ conviction of

      Class B felony dealing and sentenced Callis to 7,300 days executed.


[3]   On April 29, 2016, Callis filed for a sentence modification after completing a

      therapeutic community program while incarcerated. The court granted Callis’

      motion, suspended the rest of his executed sentence to probation, and released

      him into a re-entry program. Callis entered the re-entry program on June 29,

      2016.


[4]   On April 27, 2017, the State filed a petition to revoke Callis’ suspended

      sentence. At the hearing, Callis admitted he is an addict and he violated his

      probation by relapsing. The court found Callis violated the terms of the re-entry

      program on October 26, 2016, and March 6, 2017. Callis argued incarceration




      1
          Ind. Code § 35-48-4-2.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017   Page 2 of 6
      would not be the best option because the Department of Correction would not

      help Callis’ substance abuse issues. The trial court explained Callis had

      exhausted all other available options. The trial court found Callis violated the

      terms of his probation, revoked his probation, reinstated the suspended sentence

      of 5,574 days executed, and gave Callis credit for 82 days served on probation.



                                   Discussion and Decision
                                            Mitigating Circumstances

[5]   Callis argues the trial court abused its discretion by failing to recognize any

      mitigating circumstances. 2 As this Court has explained:


               The ability to serve a sentence on probation has been described as
               a “matter of grace” and a “conditional liberty that is a favor, not
               a right.” A probationer faced with a petition to revoke his
               probation is therefore not entitled to the full panoply of rights he
               enjoyed prior to the conviction.


      Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005) (internal citation

      omitted). Trial courts are not required to consider mitigating factors when

      imposing sanctions for probation revocation. Treece v. State, 10 N.E.3d 52, 59



      2
        Callis did not present any mitigating circumstances at the hearing when the trial court was considering what
      sanction to impose for his probation violations. We cannot find an abuse of discretion in a trial court’s
      failure to find mitigators when none were offered. Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007), clarified
      on reh’g 875 N.E.2d 218, 220 (Ind. 2007) (“this general proposition has at least one important exception,
      namely: pleas of guilty”). Waiver notwithstanding, we briefly address the merits of Callis’ legal argument.
      See, e.g., Omni Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012) (addressing waived arguments
      because appellate court prefers to address issues on the merits when possible), reh’g denied.



      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017            Page 3 of 6
      (Ind. Ct. App. 2014). Therefore, the court’s failure to recognize mitigating

      factors was not an abuse of its discretion. See Mitchell v. State, 619 N.E.2d 961,

      964 (Ind. Ct. App. 1993) (holding trial court did not err by declining to consider

      mitigating circumstances before imposing sanction because Indiana Code

      section 35-38-2-3 does not require a trial court to consider aggravating and

      mitigating factors when revoking probation), holding narrowed by Patterson v.

      State, 659 N.E.2d 220, 222 n.2 (Ind. Ct. App. 1995) (trial courts should consider

      a probationer’s mental state when deciding sanction for probation revocation).


                                           Credit for Drug Court Time

[6]   Callis next argues the trial court abused its discretion when it did not give him

      credit for the days he spent in the drug court program. 3 “Because pre-sentence

      jail time credit is a matter of statutory right, trial courts generally do not have

      discretion in awarding or denying such credit.” Molden v. State, 750 N.E.2d 448,

      449 (Ind. Ct. App. 2001), reh’g denied.


[7]   Here, however, Callis was not in “jail” prior to sentencing. He was in a drug

      court deferral program that, had he successfully completed it, would have

      resulted in the charges against him being dropped. See Ind. Code § 33-23-16-14

      (defining and explaining problem solving court programs). “Drug court deferral



      3
        We note Callis was removed from the drug court program in 2015 before he was convicted and sentenced to
      the time he is now serving. If Callis believed he should have earned credit for the days he spent in the drug
      court program, he should have raised the issue at his sentencing hearing in 2015 and then on direct appeal
      from that sentencing. Despite the fact that Callis’ failure to timely raise this issue results in it being waived at
      this late date, we address the merits of his argument. See Omni Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind.
      Ct. App. 2012), reh’g denied.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017               Page 4 of 6
      programs provide an opportunity for those qualified to avoid conviction and

      sentence, but only if they comply with the conditions of the program.”

      Meadows v. State, 2 N.E.3d 788, 793 (Ind. Ct. App. 2014).


[8]   Callis argues we should overturn our decision in Perry v. State, 13 N.E.3d 909

      (Ind. Ct. App. 2014), in which we held that the court did not abuse its

      discretion in denying Perry’s request for credit for the time he spent on

      electronic monitoring while participating in a drug court program before being

      sentenced. Id. at 913. Callis believes Perry allows the State to have too much

      control over a citizen’s life and unless we reverse it, the drug court programs

      will die out. 4 (Appellant’s Br. at 9). We disagree.


[9]   The Perry decision relied on Meadows, in which we explained the policies

      regarding a person who has been sentenced or is awaiting trial do not apply to

      persons placed in drug court deferral programs. Meadows, 2 N.E.3d at 793. As

      such, just as in Perry, Callis’ trial court was not required to give Callis credit for

      the time spent in the drug court program prior to sentencing. See Perry, 13

      N.E.3d at 913 (declining to give credit for time spent in drug court program).

      As mentioned in Meadows, if we were to award offenders credit for time spent in

      diversion programs prior to sentencing, it would diminish the reward for




      4
        Callis expressed concern that drug court programs will die out if we do not reverse Perry. However,
      successful completion of the program keeps the offender from being convicted and sentenced. Meadows v.
      State, 2 N.E.3d 788, 793 (Ind. Ct. App. 2014). We do not believe all defendants, when presented with the
      option to either participate in a diversion program or continue proceeding toward conviction and
      incarceration, will choose the latter.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017        Page 5 of 6
          completing the program and ultimately be rewarding offenders for their failure.

          Meadows, 2 N.E.3d at 793.



                                                 Conclusion
[10]      When imposing sanctions for probation violation, the trial court was not

          required to consider mitigating circumstances or give credit for time spent in a

          pretrial diversion program. Accordingly, we affirm.


       [11] Affirmed.




          Barnes, J., and Bradford, J., concur.




          Court of Appeals of Indiana | Memorandum Decision 34A02-1706-CR-01450 | November 20, 2017   Page 6 of 6
