MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                     09/06/2017, 11:05 am
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Devon M. Sharpe                                          Curtis T. Hill, Jr.
Jenner, Pattison, Sutter & Wynn, LLP                     Attorney General of Indiana
Madison, Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian K. Ellison,                                        September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A04-1705-CR-986
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Gary L. Smith,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69D01-1401-FD-11



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017              Page 1 of 6
                                           Statement of the Case
[1]   Brian K. Ellison appeals the trial court’s revocation of his probation. Ellison

      raises a single issue for our review, which we restate as whether the trial court

      erred when it rejected Ellison’s plea agreement but then accepted Ellison’s

      ensuing admissions in open court to the State’s allegations.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On November 19, 2014, Ellison pleaded guilty to theft, as a Class D felony.

      The trial court accepted Ellison’s guilty plea and sentenced him to three years,

      all of which the court suspended to probation. The conditions of Ellison’s

      probation included prohibitions against the commission of additional crimes

      and the use of alcohol. On August 1, 2016, the State filed a notice of probation

      violation against Ellison. According to the State, while on probation Ellison

      had committed the new offense of operating a motor vehicle while intoxicated.


[4]   The trial court held a hearing on the State’s notice on April 7, 2017. At that

      hearing, the parties tendered a proposed plea agreement to the trial court in

      which Ellison would have admitted to the probation violation and, in exchange,

      the court would have ordered Ellison to serve 730 days on home detention.1

      But the court informed Ellison’s counsel that it was “reluctant to accept [the]




      1
          Ellison has not included a copy of the agreement in his Appellant’s Appendix. See Ind. Appellate Rule 50.


      Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017            Page 2 of 6
      agreement” in light of Ellison’s prior felony conviction and other notices of

      probation violations that had been filed against Ellison. Tr. at 2. Ellison’s

      counsel informed Ellison of the trial court’s position, and Ellison informed the

      court that he “want[ed] to proceed even under those circumstances.” Id. at 3.


[5]   The trial court then placed Ellison under oath and informed him of his rights

      and the consequences of waiving those rights, and Ellison informed the court

      that he understood its advisements. In particular, the court stated:


              Ok. I want to make something very clear to you Mr. Ellison and
              I told this to the attorneys, but I want to make sure that you are
              aware of this as well. Any, in this particular situation, any admission
              or agreement on a revocation is much like an open plea to the court and it
              would be a recommendation only, so as I explained to the attorneys
              and it is my understanding that you are aware of this, but I want
              to make it clear on the record. If you choose to proceed today,
              that is fine, you have that option. The attorneys will tell me what
              their recommendation is, what they have agreed to recommend
              to the court for disposition or the sentence on this particular
              revocation. That is not a binding recommendation to the [c]ourt. It is
              purely left to the [c]ourt’s discretion, so the [c]ourt could do anything
              within the realm of possible sentences here. One of those is the [c]ourt
              could allow you to admit and the [c]ourt could accept the
              recommendation as the attorneys have made specifically and
              sentence you exactly as they have agreed and how you have
              agreed. The [c]ourt could say I believe this sentence i[s]
              inappropriate and sentence you to a more lenient sentence if I
              believed that was appropriate and the [c]ourt could, if I believed
              it was more appropriate based upon the circumstances, sentence
              you to a more harsh sentence as well. So I want you to understand
              before we proceed that is a recommendation and a recommendation only
              and it is not binding on the [c]ourt. So do you understand that?



      Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017   Page 3 of 6
      Id. at 4-5 (emphases added). Ellison responded, “Yes sir” to the court’s

      question. Id. at 5.


[6]   Ellison admitted that he had operated a vehicle while intoxicated as alleged in

      the State’s notice of probation violation. The court then revoked Ellison’s

      probation and ordered him to serve the balance of his previously suspended

      sentence. This appeal ensued.


                                     Discussion and Decision
[7]   On appeal, Ellison asserts that the trial court erred when it revoked his

      probation and ordered him to serve the balance of his previously suspended

      sentence. As the Indiana Supreme Court has explained:

              “Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled.” Prewitt v. State,
              878 N.E.2d 184, 188 (Ind. 2007). It is within the discretion of the
              trial court to determine probation conditions and to revoke
              probation if the conditions are violated. Id. In appeals from trial
              court probation violation determinations and sanctions, we
              review for abuse of discretion. Id. An abuse of discretion occurs
              where the decision is clearly against the logic and effect of the
              facts and circumstances, id., or when the trial court misinterprets
              the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing
              Axsom v. Axsom, 565 N.E.2d 1097, 1099 (Ind. Ct. App. 1991)
              (“An abuse of discretion may also be found when the trial court
              misinterprets the law or disregards factors listed in the controlling
              statute.”)).


              Probation revocation is a two-step process. First, the trial court
              must make a factual determination that a violation of a condition
              of probation actually occurred. Woods v. State, 892 N.E.2d 637,

      Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017   Page 4 of 6
              640 (Ind. 2008). Second, if a violation is found, then the trial
              court must determine the appropriate sanctions for the violation.
              Id.


      Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).


[8]   According to Ellison, the trial court “should have either accepted or rejected the

      parties’ agreement and been bound by its terms. Instead, the Trial Court

      violated Ellison’s due process [rights] by accepting his admission and

      sentencing [him] wildly in excess of the agreement.” Appellant’s Br. at 11.

      Ellison continues: “the Trial Court did not accept or deny the sentencing

      recommendation in the parties’ joint motion . . . . Instead, the Trial Court

      accepted the agreement and Ellison’s admission without also accepting the

      sentence recommendation.” Id. at 11-12 (emphases added). We reject Ellison’s

      erroneous assessment that the trial court accepted, and was therefore bound by,

      the proposed plea agreement. The record unambiguously shows that the trial

      court declined to accept Ellison’s plea agreement. The record is equally clear

      that Ellison was aware of that fact and was advised of his rights before he

      personally agreed to proceed despite the court’s rejection of the proposed plea

      agreement.


[9]   Insofar as Ellison argues in the alternative that the court was required to hold a

      fact-finding hearing after it rejected the proposed plea agreement, we cannot

      agree. After being advised of his rights, Ellison admitted to the alleged

      violations in open court, which rendered a fact-finding hearing unnecessary.

      See Ind. Code § 35-38-2-3(e) (2017). And Ellison does not suggest on appeal

      Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017   Page 5 of 6
       that his admissions were not made knowingly, voluntarily, or intelligently.

       Accordingly, Ellison’s arguments on appeal are without merit, and we affirm

       the trial court’s judgment.


[10]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A04-1705-CR-986 | September 6, 2017   Page 6 of 6
